united states senate committee on finance hearing to ... · 11/27/2017 · 2015. additionally, we...

United States Senate Committee on Finance

Hearing to Consider the Nomination of Kevin K. McAleenan, to be CBP Commissioner

October 24, 2017

Questions for the Record – Kevin K. McAleenan

Senator Hatch

Question 1:

Over New Year’s weekend, CBP’s systems crashed, delaying thousands of travelers and

wreaking havoc on the inspection process at ports of entry. While the system outage was not the

result of a malicious attack, with the improvements technology has made in travel facilitation, we

are becoming more dependent on this type of technology.

If confirmed, how would you address the need to modernize technology to improve travel

facilitation and while at the same time being able to address existing travel volume and

increased traffic during peak travel times and projected travel increases at gateway airports?

ANSWER: I recognize that maintenance as well as modernization of technology at our ports of

entry (POEs) is critical to ensuring that CBP can handle high transaction volumes, especially

during the holiday seasons. CBP is committed to enhancing availability in our critical systems.

Additionally, CBP utilizes a layered defense for vetting travelers arriving in the United States

which begins when travel documents or authorizations are issued and continues as reservation

data and advance passenger information is received from airlines prior to passengers boarding

the plane. Along with backup systems that can be used when passengers arrive in the United

States, the advance vetting reduces the risk of the system issues noted in the subject report for

vetting and inspecting travelers at our ports of entry.

If confirmed, I further intend to press forward on our modernization efforts at airports. The

success of the Automated Passport Control and Mobile Passport Control applications, only with

sustained growth in Global Entry, and operational innovations such as modified egress, have

allowed CBP to maintain or reduce wait times despite continued increases in travelers. With the

support of Congress, we have an opportunity to use biometrics to further enhance the arrivals

process while we also implement biometric exit. These innovations will be supported by a new

cloud infrastructure which will support better backup processes and reduce downtime.

Question 2 The Border Interagency Executive Council (BIEC) was first established by Executive Order in

February 2014 to address International Trade Data System (ITDS) issues.

Do you believe that this function should be expanded further to cover all government agencies to

address key issues and to work toward the goal of a true single window?

ANSWER: I believe that Border Interagency Executive Council (BIEC) is an important

interagency forum that allows participants to address key issues and enhance our single window

efforts from a technical, operational, and partnership perspective. Representatives from the

departments of Agriculture, Commerce, Energy, Health and Human Services, Homeland

Security, Interior, Justice, State, Transportation, and Treasury, along with representatives from

the Consumer Product Safety Commission, the Environmental Protection Agency, the Office of

Management and Budget, and the National Security Council regularly participate in the Border

Interagency Executive Council (BIEC) Principals Meetings.

From February 2014 through December 2016, the U.S. Government’s Partner Government

Agencies (PGAs) worked collaboratively through the Border Interagency Executive Council

(BIEC) to deliver the Single Window and to automate each agency’s import and export reporting

requirements through the Automated Commercial Environment (ACE). These changes

underscore the necessity of continued progress required to ease the submission and management

of data required by the U.S. Customs and Border Protection (CBP) and the Partner Government

Agencies (PGA) to efficiently and securely import or export cargo through the Single Window.

The BIEC has continued in Fiscal Year 2017 and 2018 under the current Administration as a

significant forum for ongoing coordination in executing priority projects approved by the BIEC

Principals. Such projects address operational and automation issues relating to U.S. importing

and exporting requirements of the International Trade Data System (ITDS) Single Window,

developed under ACE. With the deployment of the majority of Single Window core capabilities,

the BIEC has refocused its established BIEC priorities.

At the April 25, 2017, Principals Meeting, the BIEC established priorities that align with today’s

trade environment and support a vibrant and competitive U.S. economy. Each priority is headed

by a Working Group Lead who is responsible for spearheading the work and managing or

delegating Working Group actions. Working Group members actively participate and contribute

to project updates, which are provided to the BIEC working level on a monthly basis. All

government agencies can be included in working groups or sub-groups as issues warrant.

Consistent with your question, I intend, if confirmed, to emphasize continued outreach to all

Participating Government Agencies on the existence of this forum and the opportunity to address

key issues relating to the single window in a collaborative interagency process.

Question 3

What do you see as the biggest opportunities in the negotiation to improve customs cooperation

with Mexico and Canada, improve trade facilitation, and strengthen trade enforcement?

ANSWER: While the Office of the U.S. Trade Representative (USTR) leads free trade

agreement negotiations for the United States, CBP is also at the negotiating table. The CBP Office of Trade is leading a team of trade experts from across the Homeland Security enterprise

that participate in the NAFTA 2.0 negotiations, including in discussions related to customs and

trade facilitation provisions and on other issues that impact CBP’s customs operations.

Though CBP cannot speak directly to text proposals that are actively under negotiation, CBP

continues to support USTR by participating in negotiating sessions, reviewing all of the proposed

NAFTA text through the interagency process, and even drafting some of our own text to ensure

that the new agreement is consistent with our legal authorities, policies, procedures, and

operational realities. CBP will continue to engage USTR in the negotiation process to obtain a

NAFTA 2.0 that enhances CBP’s customs enforcement mission at our borders while also raising

regional trade facilitation standards.

Specifically, CBP seeks NAFTA 2.0 outcomes that reflect CBP’s risked-based approach to

customs enforcement, emphasize our focus on priority trade enforcement issues (including free

trade agreement preferences, intellectual property rights, antidumping and countervailing duties,

wildlife trafficking, and forced labor), enhance our ongoing trade facilitation efforts with our

Canadian and Mexican partners to further automate, streamline, and harmonize all three

countries’ customs processes and procedures, and promotes a regional approach to security.

Question 4

The Trade Facilitation and Trade Enforcement Act of 2015 raised the de minimis level to $800,

providing additional opportunities to receive expedited clearance at the U.S. border through

“Section 321”.

How is CBP working with other agencies to ensure a smooth process for clearing low risk

shipments expeditiously?

ANSWER: Facilitation of cargo is a key part of CBP’s trade mission. Streamlining and

promoting frictionless trade are CBP’s goals especially in light of changing technologies and

business processes. CBP has been working closely with the trade community and participating

government agencies to facilitate low value cargo while ensuring that shipments facilitated by e-

Commerce are complying with CBP and other agency regulatory requirements.

Question 5

CBP is engaged in discussions with the trade about automating the Section 321 de minimis

procedures across all modes of transportation.

What procedures are being adopted in regards to the land, sea, and rail shipments?

ANSWER: Recognizing the intent of Congress to support frictionless trade, particularly in the e-

commerce environment through the increase of the de minimis to $800, CBP is working with

both the trade community and PGAs in providing a streamlined mechanism for low value

shipments. Our operational approach is that the bulk of shipments will not require significant

advanced information to allow CBP to assess risk. CBP will provide an automated mechanism

to allow the trade community to provide additional information about shipments which have

other agency regulatory requirements – allowing other government agencies to assess the risk

and ensure their regulatory requirements are met.

Question 6

GAO found that CBP generally had not met the staffing levels set by Congress for trade

positions and that these shortfalls could impact CBP’s ability to effectively enforce trade laws

(e.g., fewer cargo inspections).

If confirmed, what would be your plan to meet the staffing levels set by Congress for trade

positions?

ANSWER:

I plan to work closely with both the Senate Finance and Appropriations Committees to ensure

our full staffing for Trade positions is appropriately resourced and that CBP’s recruiting and

hiring efforts prioritize these critical positions. CBP has worked to reduce shortfalls in critical

operational trade occupations over the last year, as well as emphasizing closing the remaining

gaps within the Office of Trade. CBP has also initiated a modeling effort to demonstrate the

economic benefits of trade staffing.

We remain committed to working on strategies to ensure full staffing of all authorized positions.

For example, CBP has made some strides in staffing for Import Specialists, and as of November

7, 2017, has made 43 tentative selections to fill the current 93 vacancies. Of these, ten (10) have

an entry on duty (EOD) dates set. Selections remain in progress for the remaining fifty

vacancies which we anticipate completing by the end of Calendar Year 2018.

CBP has dedicated a significant amount of resources to accomplish the requirements within the

law, but the reality is that we simply were not staffed to meet those requirements provided for to

timely meet some of the goals of the Trade Facilitation and Trade Enforcement Act of

2015. Additionally, we are working to better define our existing challenges which have resulted

in gaps in the trade related positions, set by the SAFE Port Act of 2006 and the Homeland

Security Act, and are creating a long-term hiring and resource plan to support and increased

authorized trade position on a sustained basis with a target for completion by the end of February

2018. Toward that end, the President’s FY 2018 budget request included funding for an

additional 140 positions across multiple disciplines in the Office of Trade to support duty

evasion, intellectual property rights, and forced labor enforcement among other priorities.

Question 7

In its efforts to strengthen trade enforcement efforts, what is CBP doing to ensure that

performance targets are included (when applicable) in plans covering high-risk issue areas and

plans to develop a long-term hiring plan for trade positions?

ANSWER:

CBP is working to better define our existing challenges which have resulted in gaps in the trade

related positions, set by the SAFE Port Act of 2006 and the Homeland Security Act, and are

creating a long-term hiring and resource plan to support trade position hiring on a sustained

basis, with a target for completion by the end of February 2018. Significantly, the Fiscal Year

2018 President’s Budget request includes 140 positions that will be dedicated to implementing

various parts of TFTEA, including trade enforcement, security, and facilitation positions.

CBP has also taken steps to quantify the impact these positions to the U.S. economy through the

development of an Economic Benefit Model (EBM). The model is based on an activity-based

costing framework, and economic theory and production functions reliant on data sourced from

the federal government, academia, and global trade organizations and is used by OT as a

decision support tool to inform planning processes, allocate resources across directorates, and

prioritize initiatives and investments. Using FY 2016 inputs and data from the EBM aligned to

the positions outlined above, OT estimates a potential economic impact of $2.3 billion in benefits

to producers, consumers, and government. These benefits are a measure of increased production

and higher profits for domestic industry, resulting from the flow of cheaper intermediate goods

(trade facilitation), and protection for domestic producers from competition against illegal and

subsidized goods (trade enforcement and security). I would welcome the opportunity to provide

a more in-depth briefing on the EBM to you or your staff.

Question 8

SLC Airport staffing question.

CBP has identified the need to hire over 2,000 CBP Officers.

How does CBP intend to address those hiring needs? How does CBP plan to deploy these

officers in key growth areas, such as the Salt Lake City airport, which has not seen growth in

officers in the past few years despite the increase in passenger volume and forecasted growth in

cargo?

ANSWER: CBP is fully committed to refining our hiring process and finding better, more

effective ways to recruit and retain frontline and mission support personnel. I recognize our

staffing challenges not only impact the Salt Lake City region, but the Nation as a whole.

CBP remains focused on having the right mix of resources at and between our nation’s

POEs. As the CBP mission continues to evolve to meet the threat to the nation and facilitate

legitimate trade and travel, we must continually assess personnel staffing requirement. The

WSM is a data-driven model that incorporates the most recent year’s workload data to determine

staffing requirements and considers factors for future facility enhancements and projected

volume growth in cross-border commercial and passenger traffic. Updated WSM results

continue to show a need for additional OFO capability to fully meet the standards set by statute,

regulation, and CBP policies, assuming maintenance of current processes, procedures,

technology, and facilities. The most recent results – factoring in the additional 2,000 CBPOs

funded by the FY 2014 Omnibus – show a need for 2,516 additional CBPOs through FY

2018. The Administration’s submission of the updated 2017 WSM demonstrated an important

commitment to the requirements it identified, as did the statement of intent in the President’s

FY18 Budget to submit proposals for authorizing language that would provide user fee funding

to address the gap as we have in past years.

At the same time, CBP is continuing to address 1,132 CBPO positions that are vacant as of

September 30, 2017. It is my top mission support priority, and will remain so if confirmed, to

achieve full authorized and funding staffing levels for all frontline law enforcement positions.

Additionally, CBP continues to implement Business Transformation Initiatives (BTIs) by

focusing on faster processing in the air, pedestrian, vehicle, and cargo environments. CBP

makes a concerted effort to implement the newest and most advanced technologies at the

nation’s POEs to create efficiencies. Along with technological advancements, CBP is deploying

biometrics and processing enhancements and expanded Trusted Traveler Programs. These

transformative initiatives and technological advancements provide the platform from which CBP

can achieve operational success in the face of increased border and air traffic, budget constraints,

and demand for new and expanded services at existing and proposed POEs. CBP’s BTIs have

saved more than 1 million inspectional hours through FY 2016 and are estimated to save more

than 500,000 inspectional hours or (over 400 CBPOs) through FY 2018.

To support increased staffing needs, CBP continues implementation of alternative funding

strategies to increase revenue sources. CBP continues to support the Donations Acceptance

Program and the Reimbursable Services Program made permanent with the enactment of the

Cross-Border Trade Enhancement Act of 2016 (P.L. 114-279). Many airports have taken

advantage of and benefited from this program. Salt Lake City International Airport (SLC)

qualifies for additional overtime hours to support expanded staffing during selected hours or to

conduct operations outside of the operational day. Our Office of Field Operations has engaged

SLC management on this opportunity, and the airport may submit an application at any time, and

CBP will review it at the following evaluation window.

Question 9

CBP has recently had significant outreach with the NGO community regarding forced labor

issues.

Can you please describe CBP’s outreach plan to engage the private sector and stakeholder

community in the development of forced labor policies and procedures and to improve CBP’s

targeting?

ANSWER: CBP has taken a number of steps to enhance enforcement of forced labor in supply

chains since the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) was enacted.

CBP is committed to working with Congress, private sector, Civil Society Organizations, and

interagency stakeholders to craft the most effective approach to modernize the regulations to

protect human rights and to protect U.S. workers from unfair competition.

CBP has undertaken an active communications effort to ensure importers are aware of the risks

associated with forced labor, what their compliance responsibilities are and how they can

validate that their supply chains are free of forced labor. These efforts include sustained

engagement with the Commercial Operations Advisory Council and public dialogue on the

issues. We want to ensure that importers and the broader trade community have clarity on forced

labor concerns. CBP published technical corrections to the forced labor regulations to remove

the consumptive demand loophole and is now outlining substantive changes to allow for an agile

enforcement response. I have further directed the Customs Trade Partnership Against Terrorism

team to ensure that forced labor issues are incorporated into their engagement with our trusted

supply chain partners.

My staff is actively engaged in the DHS-led Forced Labor Interagency Working Group, which

includes ICE, Department of State, DOJ, U.S. Agency for International Development,

Department of Treasury, General Services Administration and Department of Labor. CBP works

closely with these agencies, when appropriate, to evaluate forced labor cases and allegations.

We have also leveraged intelligence units within our Office of Trade and OFO’s National

Targeting Center, Counter Networks Division. In the last two years, CBP has detained

$6,307,926 in goods suspected of violating 19 U.S.C. §1307. Most recently, CBP detained

eleven shipments of seafood suspected of being processed by companies in China using the labor

of North Korean nationals. The shipments are valued at $564,775 and are detained at four ports

of entry. Further, OFO issued an Action memorandum to the Centers directing them to issue

requests for information to approximately 235 importers. This effort focuses on manufacturers

and importers with links to the areas within China suspected of using the labor of North Korean

nationals to manufacture goods destined for the United States.

CBP also continues to meet with Civil Society Organizations to ensure we are aware of trends,

insights, and concerns that these groups possess into forced labor issues. If confirmed, I will

continue to implement aggressive and broad-based enforcement efforts to address the challenge

of goods manufactured with forced labor entering our supply chain.

Question 10 What steps will CBP continue to take to ensure the trade community understands how it is

approaching enforcement of the forced labor import prohibition to improve transparency and

deterrence together?

ANSWER:

CBP has taken a number of steps to enhance enforcement of forced labor in supply chains since

TFTEA was enacted and to communicate about these efforts to the trade community. CBP

engaged specific industry sectors through our Centers of Excellence and Expertise and our

regulatory auditors to conduct bi-directional education and assess best practices of risk

mitigation and compliance related to forced labor in the global supply chain.

CBP has undertaken an active communications effort to ensure importers are aware of the risks

associated with forced labor, what their compliance responsibilities are and how they can

validate that their supply chains are free of forced labor. These efforts include sustained

engagement with the Commercial Operations Advisory Council and public dialogue on the

issues. We want to ensure that importers and the broader trade community have clarity on forced

labor concerns. CBP published technical corrections to the forced labor regulations to remove

the consumptive demand loophole and is now outlining substantive changes to allow for an agile

enforcement response. I have further directed the Customs Trade Partnership Against Terrorism

team to ensure that forced labor issues are incorporated into their engagement with our trusted

supply chain partners.

If confirmed, I remained committed to ensuring that CBP continues to engage with the trade

community in order to ensure transparency and foster our mutual goals of predictability,

consistency, and deterrence of unfair or violative trade practices in supply chains.

Question 11

It continues to be a challenge for CBP to acquire data elements to get advanced electronic data

from the U.S. Postal Service to better target shipments.

What steps is CBP taking to address these issues so that CBP can better target mail shipments to

prevent violative and dangerous goods from entering our country?

ANSWER: CBP is working closely with the United States Postal Service (USPS) to better target

mail shipments destined for the United States. CBP and USPS signed an MOU on September 1st,

2017, outlining roles and responsibilities between the agencies and better aligning out

enforcement efforts. Additionally, I have worked closely with the Postmaster General, Megan

Brennan, meeting or speaking with her numerous times in the past 2 months, to cultivate a more

robust relationship and enhance our ability to function in tandem.

Toward that end, CBP and the U.S. Postal Service (USPS) are pursuing joint priorities,

including, first and foremost, the increased collection of advanced electronic data (AED) on mail

parcels, along with technology and facility enhancements, and collaborative inspection and

investigative efforts. With respect to AED, CBP has offered to support USPS capacity building

and diplomatic efforts with foreign postal partners. Recently, increases in submission of AED on

parcels from China has resulted in a dramatic increase in the total percentage of AED received

by the U.S. government—now over 40 percent. Our discussions also include the impact of

relevant legislation and outreach to international partners and world organizations such as the

Universal Postal Union to allow for the collection of advanced electronic data or AED.

Furthermore, CBP is currently conducting special operations in the International Mail Facility

environments throughout the year focusing on intellectual property rights and fentanyl

enforcement and we will continue to conduct these operations. CBP is also looking to increase

staffing at the International Mail Facilities to help address the increased volume of shipments.

Question 13

Section 303 of the customs bill closes a statutory loophole regarding the seizure and disclosure

of information related to circumvention devices.

Can you please provide us with CBP’s timeline for implementation of this new provision?

ANSWER: CBP has completed drafting of the Notice of Proposed Rulemaking necessary to

make this change, and is working through the Office of Management and Budget-led interagency

process to finalize and publish that rule in the Federal Register. While I cannot offer a specific

timeline with confidence, I assure you that, if confirmed, I will pursue finalization of the rule

expeditiously, as we continue to do with all of the regulatory changes directed by the Trade

Facilitation and Trade Enforcement Act of 2015.

Question 14

You recently noted that CBP is in the process of developing a new strategy to address the rapid

growth of e-commerce.

How do you envision this new strategy affecting CBP’s current IPR enforcement efforts?

ANSWER:

We believe the strategy should engage new partners in e-Commerce supply chains to ensure full

compliance with trade laws and regulations.

The most significant challenges to CBP in the area of trade enforcement come from the dramatic

changes ongoing in the global supply chain. The most prevalent is the dramatic growth in e-

Commerce and direct to consumer imports. E-Commerce is largely responsible for the increase

in the volume of small shipments entering the U.S. stream of commerce. As the agency with

physical control over U.S. imports, CBP must adapt to the growth of imports through e-

commerce business. The potential threat of harm to the public due to the challenges in the e-

commerce environment is real. From terrorist plots that have involved small packages to the

seizure of thousands of non-compliant goods with health and safety issues or intellectual

property rights violations, CBP must continue to address threats in e-commerce shipments to

preempt such risks to the nation’s safety and security.

To address these evolving challenges, CBP officially established the E-Commerce and Small

Business Branch within the Office of Trade and directed it to develop and implement a new e-

commerce strategy. The developed strategic goals and objectives, will position CBP to address

the challenges in the e-commerce environment now and into the future. We believe the strategy

should engage new partners in e-Commerce supply chains to ensure full compliance with trade

laws and regulations.

Additional intellectual property rights (IPR) exams and special operations targeting the small

package environment will help to address the critical risk of counterfeit goods. By leveraging a

strong partnership with Homeland Security Investigations at the National Intellectual Property

Rights Center (IPRC), CBP will direct targeting and operational resources to areas of greatest

concern. CBP will also work with the US Postal Service to increase the amount of advanced

electronic data received from foreign posts and work to identify emerging technologies that can

provide enhanced inspection capabilities of parcels.

ADCVD Imports

Question 1a: Customs and Border Protection has the role of collecting antidumping and

countervailing duties on imports that are unfairly subsidized or sold at less than fair market

value. These duties are important to level the playing field for American producers who would

otherwise be faced the adverse impact of unfair trade practices. A GAO report from last year

estimated that there were $2.3 billion in anti-dumping and countervailing duties owed to CBP,

and I’ve written to DHS before on the effect uncollected duties of wooden bedroom furniture has

on manufacturers in my state. I realize there are a number of challenges to collecting these

duties, and I appreciate the work that CBP has done to address the outstanding duties

owed. However, for our trade remedies to be meaningful, it is essential that they be enforced,

and the failure to collect these duties harms North Carolina businesses.

Can you assure me that if confirmed, you will continue to make the collection of outstanding

duties a priority?

ANSWER: Yes, if confirmed, I can assure you that I will continue to make collection of

outstanding duties a priority. To that end, as part of CBP’s enforcement related to the Enforce

and Protect Act (EAPA), CBP has initiated over 14 EAPA investigations, including some related

to wooden bedroom furniture, all of which have resulted in interim measures. I am committed to

continuing this enforcement effort.

Question 1b: And can you explain how you will improve upon CBP’s record in duty collection?

ANSWER: Duty collection is a critical, but complicated, component of anti-

dumping/countervailing duty (AD/CVD) enforcement. In order to be more effective in our

QUESTIONS FOR THE RECORD SUBMITTED BY

THE HONORABLE Richard Burr

Acting Commissioner Kevin McAleenan

U.S. Customs and Border Protection

Senate Committee on Finance

Hearing to Consider the Nomination of Kevin K. McAleenan, of Hawaii,

to be Commissioner of United States Customs and Border Protection,

Department of Homeland Security October 24, 2017

enforcement efforts, CBP is exploring creative ways to adjust bonding requirements to mitigate

the risk of non-payment that certain importers present. For example, CBP has identified options

for risk-based bonding as part of its implementation of Section 115 of the Trade Facilitation and

Trade Enforcement Act (“TFTEA”) (Pub. L. 114-125). CBP’s intent is to statistically predict the

risk of future non-payment of duties, taxes, and fees and adjust bond amounts to protect

government revenue and apply AD/CVD orders effectively. In addition, as required by

Executive Order 13785, the Department of Homeland Security (DHS) has submitted a report to

the White House outlining a plan for risk-based bonding to provide greater security for payments

of final AD/CVD. CBP has automated the securing of bonds within ACE (e-Bonds) that

centralizes CBP’s management of bonds and ensures bonds are properly executed thus

facilitating the collection of monies owed secured by bonds.

When CBP identifies revenue risks from AD/CVD imports, CBP is proactively requesting

additional security in the form of single transaction bonds from importers. Despite repeated

court challenges, CBP continues these efforts to secure AD/CVD revenue. CBP has also been

successful in recent years in taking sureties to court to collect delinquent AD/CVD when sureties

do not fulfill their legal obligation to pay amounts owed. CBP has had great success in

aggressively pursuing sureties in these cases to establish a clear monetary incentive for sureties

to make prompt payment upon demand. CBP will continue to actively pursue collection of

uncollected AD/CVD duties against delinquent importers and sureties.

For certain high-risk commodities, CBP is also taking steps, such as “live entry” for certain steel

products, to ensure payment of duties prior to the time of release.

Through implementation of the Enforce and Protect Act (EAPA), CBP has also successfully

halted the flow of illicit goods within months of initiating the investigations into evasion of the

antidumping and countervailing duty orders. For example, in the EAPA investigations into the

transshipment of wire hangers through Thailand and Malaysia from China for nine U.S.

importers, CBP stopped the evasion of over $33 million in antidumping duties annually.

Question 2: As you know, through the first four months of 2017 we saw a significant decline in

the number of apprehensions made on the Southwest border. This apprehension metric helps us

determine how secure our border is. However, recently CBP has reported an upward trend in

apprehensions which suggests that there might be a surge of aliens again trying to enter the

United States illegally.

To what do you attribute this steady increase in border apprehensions?

ANSWER: I believe that a number of factors are driving border crossing trends this year. The

first four months after the inauguration of President Trump resulted in a sharp decrease in

apprehensions, largely due to the Administration’s clear messaging on the intent to enforce

immigration laws. The increases we have seen over the last several months are comprised

primarily of family units and unaccompanied alien children (UACs) from the Northern Triangle

countries of Central America. As the Administration recently noted in its release of immigration

principles and policies, systemic improvements are needed in the process for handling aliens

asserting credible fear at the border, UACs, and other populations, including increased

immigration court capacity. The recent increases may also be partially attributable to U.S.

seasonal labor demands and traditional push/pull factors, as well as active efforts by human

smuggling organizations to increase volume.

Question 3a: Border security and “the wall” have been a main topic of discussion for this

administration. In my bill – the Building America’s Trust Act – I provide for a multi-layered

approach to border security, focusing not only on physical barriers, but also on technology like

drones, ground and vehicle radar, and other types of surveillance equipment to help the border

patrol quickly identify and apprehend those seeking to enter the United States illegally.

Do you believe that only a physical barrier, such as a wall, is the best path forward to securing

our southern border?


THE HONORABLE John Cornyn







ANSWER: Securing the border requires an integrated approach including infrastructure such as

border wall and road access, surveillance technology, response capability and personnel. The

U.S. Border Patrol maintains a Capabilities Gap Analysis Process that begins with input from the

sector level, and has identified the necessary capabilities to secure the border. The four key

Master Capabilities are: Domain Awareness, Impedance and Denial, Access and Mobility, and

Mission Readiness. Border wall provides an important capability to impede or deny illegal

crossings in those areas where it is applied, as demonstrated in San Diego, Tucson, El Paso, and

Yuma Sectors, but it is not effective alone, and is not an appropriate solution for every area of

the border. Where it is applied, border wall must be supported by the ability to detect activity

through advanced surveillance technology, and the ability to respond effectively with mobile,

trained personnel. In this way, the most effective means of achieving operational control of the

border does not rely on any single capability, piece of technology, or infrastructure. It is a

mixture of all of those things, executed by a properly trained and properly equipped mission

ready workforce.

Question 3b: Would you agree that my multi-layered approach is the best way to ensure that

CBP gains 24/7 situational awareness and operational control of the border?

ANSWER: Yes, layering resources strategically according to operational requirements enables

the U.S. Border Patrol to detect, identify, classify, and track persons entering the U.S. illegally

between the POEs and effect the appropriate response and resolution to secure our nation’s

borders. This approach utilizes manpower, technology, and tactical infrastructure deployed in

areas of greatest risk to ensure the highest degree of success. A constant cycle of conducting

intelligence analysis, capability gap analysis, and mission analysis ensures that resources are

providing the expected results, or need revisiting.

Question 4: As you know, the U.S. government currently employs many various forms of

technology along the Southern Border. Everything from fixed and mobile tower systems with

radars and cameras, to UAVs, to Aerostats, to mention a few. But I understand that integrating

all of this available technology and information has been a challenge and in some cases

impossible.

Do you have a plan to integrate the available resources to provide CBP the best possible

situational awareness for gaining and maintaining operational control of the border?

ANSWER: This is an important area of effort for CBP, directly contributing to a key capability

for border security. It would be a priority for me, if confirmed, and we have numerous efforts

ongoing in this area. For example, CBP developed the Tracking, Sign-cutting, and Modeling

(TSM) application as a solution to the Border Patrol’s problem of sorting, organizing, presenting,

and disseminating its massive volume of intelligence information. TSM is a capability shared

between the Intelligent Computer Assisted Detection (ICAD) and Enterprise Geospatial

Information Services (eGIS) development teams. TSM facilitates comprehensive geospatial

monitoring of ground detection and tracking operations and provides situational awareness to all

relevant parties. TSM tracks incursion events, rolling-up every intelligence source available,

relating them to specific groups, and displaying it all on an eGIS map. Existing technologies

sensor information is either manually (IFT and RVSS) or automatically (UGS and i-UGS)

reported into TSM. Currently, efforts are underway to integrate existing sensor capabilities to

eliminate operator manual inputs into TSM to provide CBP the best possible situational

awareness for gaining and maintaining operational control of the border. TSM also has plans to

more fully integrate with the Border Patrol Enforcement Tracking System (BPETS) and e3,

CBP’s portal that collects and transmits biographic, encounter, and biometric data of individuals

encountered at the border.

A vital component of DHS’s domain awareness capabilities, AMO’s Air and Marine Operations

Center (AMOC) integrates surveillance capabilities and coordinates a response to threats to

national security with other CBP operational components, including USBP, Federal, and

international partners to detect, identify, track and support interdiction of suspect aviation and

maritime activity in the approaches to U.S. borders, at the borders, and within the interior of the

United States. Coordinating with extensive law enforcement and intelligence databases and

communication networks, AMOC’s command and control operational system, the Air and

Marine Operations Surveillance System (AMOSS), provides a single display capable of

processing up to 700 individual sensor feeds and tracking over 50,000 individual targets

simultaneously. The eight TARS sites represent approximately two percent of the total integrated

radars in AMOSS, yet were able to account for detecting 53 percent of all suspect target

detections. As we continue to deploy border surveillance technology, particularly along the

Southwest border, these investments in fixed and mobile technology, as well as enhancements of

domain awareness capabilities provided by the AMOC allow CBP the flexibility to shift more

agents from detection duties to interdiction of illegal activities on our borders.

Perhaps the most important advancements come in the area of data integration and exploitation.

Downlink technology, paired with the BigPipe system, allows AMO to provide a video feed and

situational awareness to its law enforcement partners in real-time. In addition, the Minotaur

mission integration system will allow multiple aircraft to share information from multiple

sources, providing a never before seen level of air, land, and maritime domain awareness. As the

Minotaur system evolves, it will provide even greater awareness for a greater number of users.

AMO also combats airborne and maritime smuggling with an integrated long-range radar

architecture comprised of ground-based radars and elevated radars deployed on tethered

aerostats. AMO, in partnership with DOD, operates and maintains a network of more than 120

long range radars providing a wide-area, persistent surveillance capability to detect and identify

cooperative and non-cooperative aircraft travelling within or near the US and crossing its

borders. This network provides AMO the capability to detect and respond to air and maritime

threats to the homeland, including organizations attempting to traffic contraband into the US.

AMO’s Tethered Aerostat Radar System (TARS) monitors the low-altitude approaches to the

United States and denies this airspace for illicit smuggling. With eight aerostat sites – six along

the Southwest border, one in the Florida Keys, and one in Puerto Rico – the TARS elevated

sensor mitigates the effect of the curvature of the earth and terrain-masking limitations

associated with ground-based radars, enabling maximum long-range radar detection capabilities

Question 5a: One of the biggest issues I hear about from agents in the Rio Grande Valley of

Texas is the inability to fully eradicate the invasive and nonnative Carrizo Cane and salt cedar

plants. These plants must be removed from the riverbanks in order to provide full visibility and

sightlines for our agents. In my border bill, I require DHS to work with the relevant Federal,

state, and local agencies to begin eradicating carrizo cane and salt cedar along the Rio Grande

River.

How long would it take for DHS to develop a plan and contract with the relevant government

and private entities to begin eradicating this invasive plants along the Rio Grande?

ANSWER: In 2007, CBP partnered with DHS‘s Science and Technology Directorate and the

U.S. Department of Agriculture (USDA) to execute the Carrizo cane control program to address

carrizo cane (Arundo donax) along the southwest border.

A pilot study was completed in 2009 along a stretch of the Rio Grande River in the USBP’s

Laredo sector. The study was conducted to evaluate the effectiveness of two methods of cane

control, the mechanical removal of cane and cutting of cane stems and applying herbicide. The

pilot study provided CBP and USDA with valuable removal method performance.

Subsequent to the pilot study, CBP funded USDA to research and develop a biological control

method for cane using Arundo wasp and Arundo scale, which feed on the roots and stems of the

cane and suppress new growth. During initial studies, these insects were released via aircraft as

well as dispersed by USDA personnel in heavily infested sections of the Rio Grande River Basin.

In 2012, USDA conducted additional pilot studies of topping cane at various heights to

determine how best to maximize the effectiveness of the biological control agents. Through these

studies, USDA determined, the biological control agents are most effective when the cane is

topped at 3 feet.

Through the pilot studies completed by USDA, CBP and USDA have developed a combined

strategy of mechanical topping and biological control that provides immediate visibility for

BPAs into areas of cane and aids in the long term control. Because control of cane is difficult

and complete eradication may be unrealistic, primary objectives for managing cane are focused

on suppression of existing infestations and reducing the spread of cane through control of healthy

plant communities.

Last year, CBP participated in a number of coordination meetings and calls with interested state,

local, and Congressional stakeholders focused on educating stakeholders on CBP efforts and

maintaining a continued dialogue and information among stakeholders.

As of December 2016, CBP has realized a reduction of approximately 32 percent in above

ground biomass with the eradication of 2.5 million tons of carrizo cane. Visibility into remaining

cane is now approximately 24-36 feet. We anticipate receiving updated data from USDA on the

reduction of cane is expected in December 2017.

CBP and USDA anticipate executing an inter-agency agreement by the end of the second quarter

of FY 2018 to execute a program for the mechanical topping of carrizo cane along the Rio

Grande River. The cane control area encompasses five U.S. Border Patrol (USBP) sectors: El

Paso, Big Bend, Del Rio, Laredo, and Rio Grande Valley. CBP will identify priority areas to be

addressed by several USDA topping crews. USDA crews will mechanically top (i.e., trim) the

cane to a height of 3 feet (approximately 1 meter) using a mechanical cutter bar mounted on a

four-wheel drive tractor. A small amount of cane control may also occur with hand-held

trimmers. The mechanical cane control method will rapidly decrease cane height to ensure

sufficient visibility of critical areas in the Rio Grande basin and provide access to these areas by

BPAs and allow the biological control agents to be most effective for the long term eradication

of carrizo cane.

This current approach is limited by funding availability and personnel resources. Currently, CBP

anticipates funding USDA $1 million annually to support mechanical topping. This rate of

funding does not allow CBP to control carrizo cane to the extent required by USBP to operate

efficiently and safely where cane is present. Should additional funding for this effort be

provided, CBP would execute one or more contracts with private companies for the topping of

cane to more rapidly address Border Patrol’s need for visibility along the entire Rio Grande

River. Contracts with private companies would be executed before the end of FY 2018 with

work beginning before the end of the calendar year 2018.

Question 5b: Does DHS have sufficient resources and the authorities needed to make this

happen in the next year?

ANSWER: DHS/CBP have the necessary authorities to continue its working partnership with

USDA on the control of carrizo cane. In addition, DHS/CBP has the necessary authorities to

enter into contracts with private entities that may be needed for additional support in this effort.

DHS/CBP has identified $1 million from our base budget for operations and support to continue

our partnership with the USDA which would allow for continued progress. Additional funding

would be required to expedite the process of controlling carrizo cane through the use of private

contracts for mechanical topping.

Question 6a: I am glad to hear that we are finally making progress on deploying biometric exit.

I’m especially pleased to hear that DHS’s pilot programs have proved to be successful and that

facial recognition technology seems to be the solution we have been seeking to create an

effective exit program.

When does DHS expect to have facial recognition technology deployed at all major airports in

the U.S.?

ANSWER: CBP is working towards full implementation of biometric exit in the air environment

within the next 4 years. CBP has deployed biometric exit technical demonstrations at one

departure gate to the following airports: Hartsfield-Jackson Atlanta International Airport

(Atlanta), Washington Dulles International Airport, Houston George Bush Intercontinental

Airport, Chicago O’Hare International Airport, Las Vegas McCarran International Airport,

Houston William P. Hobby Airport, and John F. Kennedy International Airport (JFK).

Coordination and partnership with CBP stakeholders including airlines and airports is critical to

the success of deployment of biometric exit in the air environment.

CBP has also launched a partnership with the Transportation Security Administration at JFK to

test facial biometric matching to determine how CBP’s facial recognition biometric exit might be

leveraged for checkpoint operations. Beginning in early 2018, CBP is working to fully scale out

air biometric exit and will spend 2018 working with stakeholders to get commitment to deploy

biometric exit technology.

Question 6b: When does DHS expect to begin deploying this facial recognition technology at

land ports of entry?

ANSWER: CBP will be implementing a Third Country National (TCN) departures program by

the end of 2017 at three land border POEs (Champlain, NY; Brownsville, TX; and San Ysidro

Pedestrian West). CBP will utilize a mobile device to take two index fingerprints from departing

TCN encountered by CBP officers during existing pulse and surge outbound operations.

In FY 2018, CBP will deploy biometric facial recognition technology at the entry and departure

points of three southern land border crossings (DeConcini and Morley Gate ports of entry

(POEs)) in Nogales, AZ and the San Luis POE. While a comprehensive deployment schedule is

still under development, the initial deployments at DeConcini and San Luis will commence by

summer 2018.

The deployment of facial recognition in the pedestrian land border environment is aimed at

achieving the following goals:

Confirming the arrival and departure of pedestrians subject to exit requirements at land

ports of entry using facial recognition without negatively impacting the flow of traffic

across the border.

Reducing the threat posed by imposters arriving on foot by verifying the identity of

travelers and comparing their photo to the travel document being used for travel.

Validating the concept of “face as a token” for verification of traveler’s identity and

closing the arrival/departure reporting gap in the pedestrian environment.

Question 6c: Has DHS considered public-private partnerships to help implement biometric exit

at land ports of entry?

ANSWER: CBP is considering public private partnerships for biometric exit in the land

environment. For example, CBP is researching the use of mobile applications to facilitate

biometric exit confirmations, similar to the Mobile Passport Control application in the air

environment, which was developed from a public private partnership. There is opportunity for a

similar arrangement in land. Additionally, CBP is exploring areas where facial recognition

might be used to facilitate driver and cargo processing. Some stakeholders have also signaled

their interest to possibly work with CBP on exit implementation. CBP welcomes private sector

input and partnership on these initiatives.

Question 6d: Has DHS considered “staging” commercial, vehicle and pedestrian traffic to

facilitate biometric exit at land ports of entry?

ANSWER: CBP is examining all options to implement Biometric Exit in the land environment

that does not negatively impede the flow of legitimate trade and travel. Capitalizing on CBP’s

successful streamlining of the I-94 document issuance process, including issuing those

documents away from the POEs where there is ample parking, CBP is evaluating the

effectiveness of using those same facilities in order to implement biometric exit in the land

environment.

Question 6e: Could CBP create EZ-pass lanes to automatically capture information like license

plate numbers and photographs of exiting vehicle traffic?

ANSWER: CBP currently utilizes license plate readers in a number of outbound lanes in order

to capture outbound vehicle information. The limitation of license plate readers is license plates

do not provide the identity of the occupants of the vehicles which is required to confirm timely

exit. Accordingly, CBP is exploring technologies that might enable facial recognition screening

in vehicles at speed. For example, CBP has worked with government and private sector

organizations and will be leveraging the DHS Silicon Valley program to identify any new and

emerging technologies in this area.

Question 6f: Has DHS considered expanding the NEXUS program to allow for travelers to be

pre-screened prior to exiting the U.S.?

ANSWER: CBP and Canada currently have a biographic information exchange program for

third country nationals. Currently, Canada provides the U.S. with their inbound biographic

information on non-Canadians so that the U.S. can use that information as departure information.

Canada has not yet shared Canadian Citizens’ data.

CBP has made this a priority in working with the Canadian Government for several years, and is

looking forward to Canada completing the necessary legal process to allow for sharing their

biographic inbound data for Canadian citizens. This will strengthen CBP’s knowledge of

departing Canadian citizens and cover all northern border crossers, including NEXUS members

when it is fully implemented.

Question 7: With the total number of Border Patrol agents falling to less than 20,000 nationwide

at the end of FY16, we must do everything that we can to retain quality law enforcement

professionals that make up today’s border patrol.

In my border bill, I’ve included the Anti-Border Corruption Reauthorization Act, which

would allow CBP to hire former law enforcement personnel who previously passed polygraph

tests as part of their positions. Do you support efforts like these to hire already qualified

personnel to these positions?

ANSWER: Hiring is my top mission support priority for CBP and I could not agree more that

we must do everything we can to recruit and retain a world-class law enforcement workforce.

CBP regularly reviews staffing levels and hiring practices (including the security vetting, which

includes the polygraph exam as part of the background investigation process) and we are open to

streamlined hiring of professionals with a demonstrated track record of trustworthiness. I

support Congress’ effort to allow waivers for former law enforcement personnel who previously

passed polygraph tests as part of their positions. DHS values the demonstrated commitment and

trustworthiness that these applicants bring to the mission, and the quality of vetting already

performed at the state, local, and federal levels for these individuals in sensitive positions. The

flexibility to waive the polygraph for individuals in these limited populations would potentially

expedite their onboarding and allow CBP to direct more resources toward processing other

groups of applicants, preventing potential bottlenecks in the hiring pipeline.

I believe this approach enables CBP to weigh pre-employment risks and implement mitigation

measures in order to improve its hiring capacity without lowering standards. Additionally,

retaining the requirement for all law enforcement applicants to undergo a Tier 5 background

investigation (the highest level), coupled with random drug testing, periodic reinvestigations, and

the continuous evaluation of employees for criminal conduct, will assist in mitigating any

potential risk.

I will ensure we remain judicious in any expansion of this authority and have shown this

discretion in our application of the current waiver authority under the FY 2017 National Defense

Authorization Act (Pub.L. No. 114-328) granting the waiver for approximately 20 percent of all

requests to date.

To be clear, I do not favor lowering our standards for frontline personnel, but rather that we work

to fill these critical national security personnel slots with seasoned law enforcement officers and

military personnel who can help keep the nation’s borders and ports of entry (airports, seaports,

and land ports) safe.

Question 8: The agents of the U.S. Border Patrol, including the roughly 10,000 in my home state

of Texas alone, do a dangerous job and make personal sacrifices that affect not only them

but their families. We must take care of our people and their loves ones. Furthermore, we

must ensure that our hard-working agents are not only rewarded but encouraged to serve a full

career with the Border Patrol and not leave early to pursue opportunities at other law

enforcement agencies.

As Commissioner, what do you personally intend to do to retain quality law enforcement

professionals at the Border Patrol?

ANSWER: I agree that ensuring we take steps to retain quality law enforcement professional

within the Border Patrol, and CBP more broadly, is paramount – especially when we have made

the initial investment in training these agents and officers, it is in our interest to have them

remain within CBP rather than depart for other components in the Department or other agencies.

I have asked both the U.S. Border Patrol (USBP) and the Office of Human Resources

Management (HRM) to work on how to best address the challenges of retention and understand

why agents depart and what we can do to address that. One of the top concerns I am hearing is

that agents leave CBP due to both the lack of mobility and the challenges of working in remote

locations.

I would to thank Congress for your support of our pilot Operational Mobility Program. The $25

million in initial funding provided in the FY 2017 Omnibus to establish this program is critical

since an identified lack of mobility accounts for approximately 74 percent of USBP non-

retirement attrition. I look forward to this program assisting in our efforts to help retain these

agents, and believe it provides multiple benefits as it addresses our agents’ mobility concerns,

provides the ability to meet evolving national security threats, and builds better agents with a

broader experience base.

I will continue to concentrate on retaining the workforce by offering operational based

mobility/relocations for frontline agents and explore options to make CBP and the USBP the

employer of choice. I look forward to working with you and your staff further on potential

solutions.

Additionally, CBP’s ability to meet its ever increasing and complex mission is dependent on a

strong and resilient workforce. Suicide remains a serious problem for law enforcement officers

and CBP is no exception. I will continue to seek best practices and leverage tools that will assist

in building workforce resiliency and reduce the stigma associated with help-seeking behavior.

The well-being of the men and women of CBP is a top priority for me.

Question 9a: On May 21, 2017, severe storms struck both in the City of Laredo, Texas and the

City of Nuevo Laredo, Mexico, causing significant damages to the facilities of border crossings

in my state. The damages specifically were to Bridge III in Nuevo Laredo and the World Trade

Bridge in Laredo. As a result of these storms, operations were significantly hindered and the

flow of goods and services across the border was interrupted.

Is the Laredo World Trade Bridge POE back at 100% operational capacity?

ANSWER: The World Trade Bridge POE is at 100 percent operational capacity, with CBP

operating out of temporary facilities while restoration activity continues on site.

Question 9b: Have all of the facilities been refurbished?

ANSWER: Repair activities remain in progress, with an expected completion date of December

2017.

Question 10a: At the end of last year, my bill, the Cross-Border Trade Enhancement Act, was

signed into law. The legislation was the product of years of effort to expand a very successful

pilot program that allowed for public-private partnerships at land, air and sea ports of entry. In

fact, as a result of its enactment, many new stakeholder entrants have been able to find new ways

to improve traffic flows and expand capacity at ports of entry.

How is the implementation of the Cross-Border Trade Enhancement Act going and do you

believe benefits of this legislation been fully realized?

ANSWER: The Cross-Border Trade Enhancement Act made permanent and expanded CBP’s

authority to enter into partnerships to accept donations and provide reimbursable services under

its Donations Acceptance and Reimbursable Services Programs respectively. To date the CBP

Donations Acceptance Program (DAP) has approved 17 donation proposals totaling $150 million

in planned public and private sector investment in U.S. POEs and important CBP initiatives. Ten

of the 17 proposals have been approved since enactment of the Cross-Border Trade

Enhancement Act in December 2016, while the others were approved under a predecessor pilot

authority provided by Congress. The ten DAP projects range from infrastructure improvements,

partnerships for the provision of biometrics services and data and donations of luggage for

canine training purposes. Partnerships entered into under DAP have and will continue to

enhance border security and promote the safe and efficient flow of passenger travel and

commercial trade.

Since the pilot program began in 2013, CBP’s Reimbursable Services Program has entered into

agreements with more than 60 stakeholders, providing over 368,000 additional processing hours

at the request of our stakeholders-accounting for the processing of more than 8 million travelers

and over 1.1 million personal and commercial vehicles. This success would not have been

possible without the Cross-Border Trade Enhancement Act being signed into law. In 2017, CBP

tentatively selected 64 stakeholders across 54 ports of entry for participation in the RSP (34 air

POEs, 4 for air and sea POEs, one for land POE, and 15 for sea POEs). CBP continues to see a

steady stream of applications for new agreements under this legislation, so while recent results

have been very encouraging, continued growth and expanded utilization of this program is

expected to allow CBP to approve new and enhanced services, which could not be provided

without the Cross-Border Trade Enhancement Act.

Question 10b: Will you continue to support public-private partnerships as a tool to boost

staffing levels and upgrade existing infrastructure?

ANSWER: Yes; CBP will continue to explore public-private partnerships as a viable mechanism

and tool by which to provide new and enhanced services and modernize the Agency’s POE

infrastructure. Where there is a return on investment for private sector to partner with us to

increase service levels or infrastructure capacity, we want to be responsive and we appreciate the

authority that Congress has granted.

Question 11a: Four rounds of negotiations between the U.S., Mexico and Canada have now

been completed on the North American Free Trade Agreement (NAFTA). As you know,

NAFTA has had a major impact on my state in particular. Texas has led the nation in exports

since 2002. In 2015 alone, exports totaled more than $251 billion. The state's largest market

was Mexico. In fact, about half of all US-Mexico trade moves through Texas ports of entry.

Could you share your thoughts on the customs aspects of a soon-to-be-renegotiated North

American Free Agreement?

ANSWER: While the Office of the U.S. Trade Representative (USTR) leads free trade

agreement negotiations for the United States, CBP is also at the negotiating table. The CBP

Office of Trade is leading a team of trade experts from across the Homeland Security enterprise

that participate in the NAFTA 2.0 negotiations, including in discussions related to customs and

trade facilitation provisions and on other issues that impact CBP’s customs operations. Though

CBP cannot speak directly to text proposals that are actively under negotiation, CBP continues to

support USTR by participating in negotiating sessions, reviewing all of the proposed NAFTA

text through the interagency process, and even drafting some of our own text to ensure that the

new agreement is consistent with our legal authorities, policies, procedures, and operational

realities. CBP will continue to engage USTR in the negotiation process to obtain a NAFTA 2.0

that enhances CBP’s customs enforcement mission at our borders while also raising regional

trade facilitation standards.

Question 11b: What would CBP like to see reflected in a new NAFTA?

ANSWER: CBP seeks NAFTA 2.0 outcomes that reflect CBP’s risked-based approach to

customs enforcement, emphasize our focus on priority trade enforcement issues (including free

trade agreement preferences, intellectual property rights, antidumping and countervailing duties,

wildlife trafficking, and forced labor), enhance our ongoing trade facilitation efforts with our

Canadian and Mexican partners to further automate, streamline, and harmonize all three

countries’ customs processes and procedures, and promotes a regional approach to security.

Question 12: I’m encouraged by CBP’s efforts to reduce redundant inspections at the border but

still maintain a high level of security. As you know, duplicative inspection processes are a big

concern for private industries.

Could you comment on your expectations for the expansion of joint inspections at U.S. ports

conducted by CBP and their Mexican and Canadian counterparts?

ANSWER: On August 23, 2017, CBP and Mexico Customs (SAT) signed a “Memorandum of

Understanding” (MOU) regarding “Unified Cargo Processing” (UCP). CBP and Canada

Customs (CBSA) have finalized a MOU on UCP and expect to sign it by the end of 2017. UCP

is a program which allows for joint inspections (either inbound or outbound operations) by CBP

personnel with foreign Customs personnel on U.S. soil.

SAT currently lacks the infrastructure in Mexico to process all the cargo and UCP allows for a

single operational location. Instead of trucks carrying cargo making multiple stops, in both

Mexico and the United States, UCP allows for a single streamlined inspection that reduces wait

times significantly and enhances security. It also fosters information exchange on customs and

security issues with Mexican Customs. UCP with SAT is operational at the Laredo (Truck, Air,

and Rail cargo), Rio Grande City (Truck Cargo), Texas; Nogales (Truck and Rail Cargo),

Douglas, (Truck Cargo), San Luis (Truck Cargo), Arizona; and Calexico (Truck Cargo),

California, POEs. CBP is in discussion with SAT on potential UCP expansion to El Paso,

Columbus, Santa Teresa, Brownsville, Progresso, Pharr, Eagle Pass, Otay Mesa, Tecate,

Phoenix, and Port Fourchon (Ocean Cargo) POEs. These potential UCP locations will be jointly

determined by CBP and SAT based upon operational impact, available personnel, and available

space.

Canadian Customs is interested in outbound operations specific to the rail environment as they

do not have any non-intrusive inspection equipment such as x-ray technology. UCP allows for

Canadian Customs to see all x-ray images from the rail and they can adjudicate concerns much

more rapidly. On the Northern Border, CBP is discussing UCP with CBSA for applicability at

Champlain (Rail Cargo), Buffalo, New York, POEs.

CBP is looking to take the concept of UCP to a location where all three Customs Agencies can

be located in one location. The UCP has helped reduce truck crossing wait times. Some

trucking companies reported to CBP that they have seen the crossing time reduced from 3 hours

to as little as 30 minutes.

Question 13: Constituents in my state are relying on the timely implementation of Drawback

Simplification section of the Trade Facilitation and Enforcement Act of 2015

(“TFTEA”). However, the regulations implementing this section are still under review by the

Department of Treasury, and may not be finalized on February 24, 2018 even though required by

statute. Furthermore, in a recent meeting with members of your CBP and Treasury, the trade

was advised that Accelerated Payment may be withheld for claims filed on and after the

February 24, 2018 date even if the regulations are not final. As you know several changes to

the drawback laws have been made over the years, and even when regulations implementing the

changes were not finalized accelerated payment was still made.

Will CBP follow past practice and precedent by guaranteeing accelerated payments of drawback

refunds even if the regulations are not final?

ANSWER: We intend to deliver the regulations timely. CBP completed the drafting in July and

initiated Department of Treasury review on July 31, 2017. Since then, CBP and Treasury have

had multiple meetings on several substantive matters raised by Treasury on the package. CBP

has submitted 3 rounds of passbacks to Treasury. Since that time we have completed

implementation of multiple rounds of comments.

We are awaiting Treasury’s final concurrence and engaging the Office of Management and

Budget (OMB) to ensure a streamlined review process commensurate with the importance of the

regulations. Even as we work toward timely completion, we are actively contingency planning

and are considering making the accelerated payment (AP) available for TFTEA drawback claims

once a final rule is effective. CBP will accept TFTEA drawback claims as of February 24,

2018.

Question 14a: The Homeland Security Committee Minority Office estimated that President

Trump’s wall could cost up to $70 billion. As we’ve discussed previously, during my CODEL to

El Paso, I heard directly from CBP officers that they would rather see investments in technology

over a wall.

Do you think spending $70 billion on 3rd century technology is an effective use of U.S. taxpayer

dollars?









the border. Where it is applied, border wall must be supported by the ability to detect activity

through advanced surveillance technology, and the ability to respond effectively with mobile,

trained personnel. In this way, the most effective means of achieving operational control of the

border does not rely on any single capability, piece of technology, or infrastructure. It is a

mixture of all of those things, executed by a properly trained and properly equipped mission

ready workforce.

Question 14b: In terms of the proposed border wall, do you anticipate CBP and DOJ having to

assert eminent domain against private landowners?

ANSWER: At this stage, DHS/CBP cannot state with certainty how many landowners will be

impacted by new border wall construction requirements. The preferred method of obtaining

interest in real property is through negotiating an offer to sell based upon the property’s fair

market value. We avoid, with few exceptions, any acquisition of real property through eminent


THE HONORABLE Benjamin Cardin







domain. However, in situations where voluntary acquisition is not possible, DHS/CBP may have

to consider acquisition through condemnation.

Question 15: During a recent CODEL to Mexico City and El Paso, I heard how critical our

bilateral cooperation is to dealing with a broad range of critical national security issues, as well

as managing challenges of Central American migration. I have serious concerns about how

President Trump’s negative comments could put this cooperation at risk, ultimately jeopardizing

U.S. national security.

What is your assessment of U.S-Mexico collaboration?

ANSWER: CBP’s collaboration with Government of Mexico counterparts at the operational

levels is as strong as it has ever been and we continue to work with them to develop and

implement shared strategic, prioritized efforts, operations, and programmatic collaboration. The

United States and the Government of Mexico (GOM) are committed to expanding our

partnerships and working with each other to address issues regarding our borders. In 2017, I

traveled to Mexico on three occasions (April, June, and August), to meet with key counterparts

(including Mexican Customs, Immigration, Police, and other agencies) and to discuss border

security and immigration enforcement. During my trip in August, I attended meetings with

officials from Mexico’s Secretariat of Foreign Affairs (SRE), Secretariat of the Interior

(SEGOB), and National Immigration Institute (INM). These discussions focused on CBP’s use

of force, border management, and border violence prevention. I have also met with senior

Mexican Government officials on numerous occasions in Washington D.C. over the past 10

months.

CBP’s partners include the Mexican Federal Police (FP), Customs (SAT), Army (SEDENA),

Navy (SEMAR), National Immigration Institute (INM), Office of the Attorney General (PGR),

and Intelligence and Research Service (CISEN). The following objectives underpin CBP’s

efforts:

1. Disrupting Transnational Criminal Organizations (TCOs) and Deterring Terrorist and

Weapons of Mass Destruction from entering the United States through coordinated

border efforts, bilateral surveillance and operations, and increased coordination with

GOM partners such as FP, SEMAR, SEDENA, and INM.

2. Increasing border security by expanding joint programs such as the Southern Border

Mentor Initiative, the Joint Security Program (JSP), and Cross Border Coordination

Initiative.

3. Facilitating increased trade and more efficient customs processing through innovative

initiatives, including the North America Single Window, Cargo Manifest Harmonization,

and Unified Cargo Processing (UCP). CBP also is supporting Mexican risk management,

the development of trusted traveler and shipper programs, partnerships with the private

sector, the development of new technology at POEs.

4. Continuing targeting efforts by supporting successful programs – such as the Automated

Targeting System-Global and the exchange of liaison officers to between targeting

centers.

5. Building the capacity of Mexican INM and SAT partners to enhanced shared border

security.

6. Supporting Preclearance expansion by engaging with Mexican ministries and airport

authorities and conducting bilateral Preclearance agreement negotiations. The new

Mexico City airport was selected by DHS as a priority location for preclearance

expansion in 2016. Discussions are ongoing towards establishing preclearance at the new

airport.

Question 16a: Instead of spending money to hire new 500 Border Patrol agents, wouldn’t this

money be better spent at the Ports of Entry, where CBP intercepts the vast majority of drugs and

contraband?

ANSWER: CBP has critical staffing needs across its frontline law enforcement positions, both

at and between ports of entry. In addition to supporting the President’s Budget Request for an

additional 500 Border Patrol agents and 94 Air and Marine Interdiction Agents, CBP does indeed

need to continue to hire CBP Officers and Agricultural Specialists at ports of entry. The most

recent results from the Office of Field Operations’ Workload Staffing Model justifies the need

for an additional 2,516 CBP Officers at our ports through FY 2018 and we are making progress

towards our authorized levels that was last increased by Congress through additional funding in

the FY 2014 Omnibus. CBP also plans to continue to offer fee-based proposals for targeted

staffing increases for CBP Officers and Agriculture Specialists.

Question 16b: After the 9/11 attacks, don’t you agree that the agency moved too quickly to hire

new recruits without the proper vetting and standards, and then paid the price later in terms of

employee misconduct?

ANSWER: CBP learned important lessons from previous times of growth and much has

improved in the past 15 years. CBP has worked internally to increase communication

throughout all areas of the hiring process (e.g., recruiting, testing, security, on-boarding, etc.).

CBP has added additional security items to the process (e.g., new automated vetting system,

polygraph examination, etc.). Technology has allowed for greater information sharing across the

government during the background investigation process. CBP law enforcement applicants

undergo a thorough pre-employment examination process including a cognitive exam, a

structured panel interview, an automated vetting procedure, a statutorily required polygraph

exam, and a Tier 5 level background investigation. CBP believes our process is one of the most

rigorous in the federal government.

Question 17: Can you give us an update on the use of body-worn cameras and improved

oversight over the Border Patrol? In my experience in Baltimore after the Freddie Gray case and

pending DOJ consent decree, these cameras can help to reduce complaints, de-escalate conflicts

(and enhance officer safety), and ensure compliance with use of force procedures.

ANSWER: I am committed to pursuing the use of camera systems, including body-worn

cameras, where operationally appropriate. Currently, we are actively pursuing the use of

Incident-Driven Video Recording Systems (IDVRS), including both vehicle-mounted camera

(VMC) and body-worn camera (BWC) systems in order to enhance transparency, accountability

and credibility with the public. In April 2018, CBP’s Law Enforcement Safety and Compliance

(LESC) Directorate will conduct an operational evaluation with USBP, OFO, and Air and

Marine Operations (AMO) to test the effectiveness of IDVRS and determine the appropriate

portfolio of VMCs and BWCs in CBP law enforcement environments. The results of the

evaluation will also be used to inform and further refine CBP policy and technology

requirements for IDVRS. Before the evaluation can begin, many things must be

accomplished. Currently CBP is working to complete lab-testing, resolve issues related to

camera security, Technical Reference Model restrictions, procedural vendor security concerns,

and CBP wireless network connectivity issues. The Privacy Impact Assessment for this initiative

is being revised and must be published by DHS before field deployments can begin. CBP’s

Office of Information and Technology (OIT) is working to address USBP checkpoint circuit and

storage upgrades that are needed to avoid impacting operations and to transfer the camera data

captured with each activation. Currently, these tasks are on schedule to be completed prior to the

field evaluation in April 2018. The field evaluation is scheduled to be completed in September

2018, with a full report and revisions to policy, technology requirements, and updated

deployment strategies.

Question 18a: Can you give me some examples of best practices you have implemented in order

to address misconduct by Border Patrol agents?

ANSWER: As the largest law enforcement agency in the United States, CBP has a

responsibility to the public it serves and to fellow law enforcement agencies to be a leader in

adopting best practices in training, tactics, equipment, integrity, and transparency. Our

effectiveness depends on maintaining the trust of the public. Toward that end, CBP has

implemented a number of best practices over the past 5 years and continues to enhance our

efforts in this area.

CBP’s approach to promoting workforce integrity is predicated on rigorous pre-employment

screening of job applicants to weed out unsuitable candidates, increased emphasis on integrity

awareness training, proactive anticorruption detection measures, and timely and thorough

investigations of criminal and serious misconduct allegations. CBP takes all allegations of

employee misconduct seriously. Under a uniform system, all allegations of misconduct are

recorded in a secure, centralized database. All allegations are then immediately referred to the

DHS Office of Inspector General for an investigative determination. Under DHS policy, the

OIG maintains the “right of first refusal” on all allegations involving DHS employees.

Allegations declined for investigation by the OIG are then returned to CBP OPR for appropriate

handling.

The Trade Facilitation and Trade Enforcement Act of 2015 (P.L. 114-125) authorized CBP OPR

to investigate criminal and administrative matters and misconduct by CBP employees OPR

investigators average over 20 years of criminal investigative experience and are equipped with a

full complement of investigative tools, including the latest in forensic and cyber technology.

OPR also utilizes the intelligence-gathering and manpower resources of the FBI through its

membership in 20 of the FBI’s 22 Border Corruption Task Forces and maintains strong,

collaborative working relationships with the DEA, ICE HSI, and other federal and local

authorities. OPR also leverages its vast array of data collection resources by deploying full-time

analysts to proactively identify suspicious or anomalous activity that could be indicative of

corruption or serious misconduct. After OPR completes its criminal or administrative

investigation, the Office of Human Resources Management and the Office of Chief Counsel

work collaboratively with OPR and management to propose and impose discipline when

appropriate. OPR continues to study known cases of corruption to inform proactive detection of

potential misconduct and corruption.

Based on the CBP Integrity Advisory Panel (IAP) recommendations of the agency’s complaints

and discipline process CBP has made many improvements to the process. For instance, we have

increased transparency for use of force incidents, are moving forward with hiring additional

criminal investigators, making technical improvements to its case management system, reissued

the directive on reporting misconduct, and HRM is revising the Table of Penalties and Offenses

and the discipline review process.

In February 2015, CBP established a Use of Force Incident Team (UFIT) program and a Use of

Force Review Board (UFRB) process in an effort to increase transparency and accountability.

The UFIT and UFRB is a CBP-wide response plan to investigate, monitor, report, evaluate, and

review use of force incidents involving CBP officers and agents. With regards to use of force

incidents, the UFIT investigation results can provide recommendations concerning tactics,

training, equipment, and/or safety issues. The investigations can also identify potential

misconduct and administrative violations that may result in disciplinary or other corrective

actions taken against employees.

In 2015, in order to address the misconduct associated with domestic violence or alcohol related

driving offenses (DUI) promptly and consistently, USBP consulted with the Offices of Internal

Affairs, Chief Counsel, Human Resources Management, as well as gained the perspectives of

District Attorneys in California, Arizona, and Texas in order to standardize administrative

consequences for the entire USBP. The Standardized Post-Employee Arrest Requirements

(SPEAR) outlines a standardized process for identifying and taking appropriate administrative

action following the arrest of a USBP employee for domestic violence or DUI. It is designed to

ensure consistent management action post-arrest. Through the application of SPEAR and

consistent messaging through video and slides on the Information Display System about the

program, alcohol related driving offenses have decreased 14 percent from FY2016 to FY2017.

As with arrests of all CBP employees, arrests involving USBP employees decreased in FY 2017.

With 110 reported arrests, USBP decreased 19 percent overall and 8 percent in Domestic/Family

Misconduct arrests. USBP continues to implement its SPEAR program and actively runs musters

regarding drug and alcohol related misconduct.

Question 18b: What are some of the most stubborn problems that you face in terms of

corruption and misuse of deadly force, and in your experience which types of agents or offices

are most vulnerable?

ANSWER: CBP has a workforce of dedicated men and women who are among the finest civil

servants in the world, who carry out their duties with the utmost professionalism and efficiency.

With support of Congress, CBP has improved its ability to prevent corruption and, due to a

number of proactive efforts, has seen consistent reductions in uses of deadly force.

With regard to the use of deadly force, over the past 3 and a half years, CBP has taken a number

of steps to ensure our law enforcement personnel are prepared for potential use of force

encounters to protect them and the public they serve. Some of these steps include the following:

Creation for the Law Enforcement Officers Safety and Compliance Directorate

(LESC) to Manage CBP’s Use of Force Program – In March 2014, CBP established

what is now the LESC to manage the agency’s use of force program. The LESC is

responsible for the development and articulation of CBP’s use of force policy and

oversees a comprehensive and fully operational program that conducts training

standardization audits, incident reviews to identify enhancements to existing training,

data analysis, use of force instructional delivery, and weapon accountability and

procurement to ensure use of force training, equipment, and policies meet CBP’s

operational requirements.

Joint Integrity Case Management System and the Assaults and Use of Force

Reporting System - In January 2014, CBP, in conjunction with Immigration and

Customs Enforcement (ICE), enhanced the data collection and reporting capabilities of

the Joint Integrity Case Management System (JICMS). JICMS is the system that tracks

allegations of excessive force. That same year, in October 2014, CBP integrated JICMS

with the data systems that captures information on assaults against officers and agents to

create the new Assaults and Use of Force Reporting System (AUFRS) which is

integrated with the Use of Reporting System (UFRS). This new system allows CBP to

conduct comparative analyses of how officers and agents respond to assaults. This

analysis will help the agency identify “best practice” responses to threats and better

inform enhancements to policies, training, tactics, and equipment. It also has the capacity

to track use of force investigations from start to finish.

Use of Force Incident Tracking System - In February 2015, the Use of Force Incident

Tracking System (UFITS) was implemented to track the investigations of use of force

incidents involving CBP employees.

Media Engagement in Response to Use of Force Incidents – “Maximum Disclosure,

Minimum Delay” - OPA updated its Standard Operating Procedures (SOP) in June 2015

to enhance CBP’s release of information following a significant use of force incident.

The SOP requires the respective OPA public affairs specialist – in coordination with the

respective field commander and OPR special agent in charge – to issue a statement

detailing the basic facts of the incident within one hour of headquarters notification. After

subsequent information has been confirmed, the field leadership, in coordination with

OPA and OPR, will issue a more detailed statement and/or hold a press briefing within 12

hours of the initial statement. This new posture has improved the timeliness and

substance of public engagement in response to fatal use of force incidents.

Previously, CBP was dependent upon local law enforcement agencies to conduct

investigations involving CBP personnel. CBP’s role was minimal, relying solely on other

agencies to conduct thorough investigations, which resulted in significant internal delays

to complete use of force investigations. These delays, along with minimal CBP

participation in the investigations, hampered CBP senior leadership’s ability to address

use of force incidents effectively. With the authority to Investigate Criminal Misconduct

and Review of Use of Force Cases, CBP now has at its disposal a variety of tools review

and investigate use of force incidents. Some of those tools include:

Use of Force Incident Teams (UFIT) - To better respond to CBP use of force incidents,

UFITs were created to provide an administrative review process that uses proven

investigative protocols and evidence gathering standards to objectively, impartially and

thoroughly examine use of force incidents in a timely and transparent manner. UFIT is a

CBP-wide, multi-office investigative unit, operating under the leadership of an OPR

incident commander, whose purpose is to conduct a thorough, factual, and objective

investigation into a use of force incident involving death or serious injury; prepare a

comprehensive report appropriate for the type of incident involved; and promptly report

and subsequently track observations, recommendations, and instructions, including any

suggested policy changes or the need for referral for further administrative or disciplinary

review.

The UFIT responds to all use of force incidents involving serious injury or death;

coordinates with local or federal authorities having investigative jurisdiction to ensure the

use of force investigation is thorough and complete; serves as “eyes and ears” of CBP

executive leadership and allows for CBP leadership to make initial statements of facts.

The UFIT review process provides the affected CBP agents and officers more timely

feedback about the use of force incidents, helping them move on, both professionally and

personally. Getting our officers and agents back to work dispels unwarranted mistrust,

lifts the cloud of suspicion, and improves their units’ readiness – and that benefits all of

CBP and the public we serve.

Use of Force Review Board (UFRB) - The National UFRB (NUFRB) is a CBP

committee established to review all significant use of force incidents resulting in serious

physical injury or death, or any incident involving the discharge of a firearm in a non-

training setting. All findings and recommendations are provided to CBP Senior

Leadership. Local UFRBs will address lesser use of force incidents that do not result in

serious physical injury or death or the discharge of a firearm.

The UFRBs review use of force incidents for three issues: (1) Was use of force within

policy? (2) Was misconduct associated with the application of force?; and (3) What

lessons can be learned from the incident in terms of techniques, tactics, policy, training

and equipment?

The findings of the UFIT investigation are presented to the National UFRB

(NUFRB). The NUFRB is comprised of Office of Professional Responsibility Assistant

Commissioner; Office of Border Patrol, Chief of Operations; Office of Air and Marine,

Executive Director; Office of Field Operations, Executive Director; DOJ/Civil Rights

Division; Office of Air and Marine, Management Official; Use of Force Center of

Excellence Director; Office of Chief Counsel; Laboratory Scientific Services, Executive

Director; Labor and Employee Relations, Director; Office of Public Affairs, Management

Official; ICE/Office of Professional Responsibility; DHS/Office for Civil Rights and

Civil Liberties; and DHS/Office of Inspector General.

The NUFRB reviews each significant use of force incident resulting in serious physical

injury or death to determine the following: (1) If the application of force in each

individual incident was consistent with the CBP Use of Force Policy; (2) Provide any

recommendations concerning tactics, training, equipment, and/or safety issues; and, (3)

Refer potential misconduct and administrative violations to CBP OPR for further

handling as appropriate.

Reporting Protocols for Use of Force Allegations: In August 2014, CBP initiated new

reporting protocols to ensure all complainants who allege excessive force are interviewed

prior to being processed for removal. All CBP components have been directed to

immediately notify the Office of Professional Responsibility upon receipt of a complaint

of alleged excessive force and to not remove individuals until OPR has had the

opportunity to conduct an investigative interview of the complainant.

Public Transparency and Accountability: CBP has posted guidance on its website to

allow the public to easily file a complaint or provide feedback at

https://help.cbp.gov/app/home. The agency uses the feedback to improve performance

across the enterprise.

The CBP Information Center also has increased its Spanish-language capacity to provide

improved service, accountability and transparency to those who speak Spanish via the fully-

integrated Spanish-language service at https://helpspanish.cbp.gov/.

New Reporting Protocols for Excessive Force Allegations

Additionally, as part of our Agency’s focus and commitment to transparency we have also

increased our engagement with the public, interagency partners, Non-Governmental

Organizations (NGOs) and the Media.

o Stakeholder Outreach

o CBP Integrity Advisory Panel

o Border Violence Prevention Technical Working Group

o Interface with the Government of Mexico

o Media engagement

CBP takes allegations of employee misconduct, to include allegations of excessive force,

seriously. Under a uniform system, allegations of misconduct are documented and

referred to the DHS Office of Inspector General (OIG) for independent review and

assessment. Cases are either retained by the DHS OIG for investigation or referred back

to CBP’s Office of Professional Responsibility for further handling.

https://help.cbp.gov/app/home

https://helpspanish.cbp.gov/

CBP’s administrative review process of Use of Force incidents begins after all federal

and local authorities decline criminal prosecution. CBP’s Use of Force Review Board

(UFRB) considers whether the application of force was within CBP policy and

constitutionally permissible, identifies potential issues involving training, tactics and

equipment, and refers any disciplinary issues (e.g. excessive force) to the Joint Intake

Center (JIC). Use of force information for specific incident may be available upon

request under the Freedom of Information Act (FOIA).

Allegations of criminal misconduct, serious misconduct, administrative misconduct, and

informational incidents can be immediately reported using one of the following methods:

Call the toll-free Joint Intake Center Hotline at 1-877-2INTAKE or send a fax to (202)

344-3390;

Send an e-mail message to [email protected];

Write to P.O. Box 14475, 1200 Pennsylvania Avenue, NW, Washington, DC 20044; or

Call the DHS Office of Inspector General (OIG) at 1-800-323-8603

CBP has also recently implemented a new extended curriculum for the Border Patrol

Academy that includes extensive scenario-based training.

Taken together all of these measures have resulted in reduced instances of the use of deadly

force, and increased transparency and accountability when deadly force is used. If

confirmed, I intend to sustain and enhance these initiatives as they are critical to earning and

maintaining the trust of the public, a fundamental prerequisite for effective law enforcement.

Question 19: Recently my staff travelled to Mexico’s southern and northern borders where they

heard numerous complaints that women, families and unaccompanied children fleeing violence

and persecution have been denied the opportunity to apply for asylum or other forms of

humanitarian protection at ports of entry along the US-Mexico border. These reports are

disturbing.

How will you address allegations of CBPOs illegally and improperly turning away asylum

seekers? To what extent are CBPOs using an expedited removal process?

ANSWER: Over the last two years, CBP has referred over tens of thousands of applicants for

admission who expressed fear of return to U.S. Citizenship and Immigration Services for review

by an asylum officer. CBP carries out its mission of border security while adhering to U.S. and

legal international obligations for the protection of vulnerable and persecuted persons.

DHS addresses any and all allegations of misconduct through a consistent, stratified review, and

investigative process. All allegations, regardless of the mode through which they are received,

are channeled through the Joint Intake Center (JIC), a central processing center, responsible for

receiving, documenting, and referring all allegations of employee misconduct. Once an

allegation is assessed and assigned for investigation, CBP conducts a thorough and impartial

investigation. Upon completion of the investigation, CBP Office of Professional Responsibility

conducts a subsequent review of the findings to develop alternate investigative strategies or

identify additional investigative leads.

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mailto:[email protected]

When appropriate, CBP proactively follows up on all allegations submitted to the Joint Intake

Center for sharing with the Office of Inspector General and to track investigative follow through.

Additionally, CBP conducts regular engagements with NGOs both at the sector and field office

level, and at headquarters.

Question 20: Border Patrol makes public few details about deaths or the methodology it uses to

count deaths. Incomplete data on migrant deaths may affect Border Patrol’s ability to understand

the scale of the problem in different sectors while making it more difficult to locate remains.

How can you improve migrant death reporting?

ANSWER: CBP defines a border-related death as a suspected, undocumented migrant who died:

1) while in furtherance of an illegal entry; 2) within a designated target zone whether or not the

Border Patrol was directly involved; and/or 3) outside the designated target zone when the

Border Patrol has direct involvement with the incident.

USBP will notify law enforcement and the coroner’s office within the jurisdiction of the located

deceased individual. Local law enforcement conducts an appropriate death-related investigation and

the county coroner assumes responsibility for the deceased. USBP contacts the coroner’s office to

request cause of death and identity determination. USBP will also contact the consulate office of the

deceased individual’s native country for notification.

Once the medical examiner/coroner determines the cause of death, a suspected cause of death is

cited in the Border Safety Initiative Tracking System (BSITS), a USBP managed client-server

database that serves as the central repository through web-based applications for collecting,

managing, and disseminating critical incident data related to suspected, undocumented migrant

deaths and Border Patrol rescues in selected counties along the U.S. border with Mexico. The

data is used for analyzing the number and locations of deaths and rescues, categorizing deaths

and rescues, identifying trends, and identifying high-risk areas.

As part of the Customs and Border Protection attention to humanitarian needs, the Missing

Migrant Program (MMP) was established by U.S. Border Patrol (USBP) in June 2015, as a pilot

program within the Tucson Sector and subsequently rolled out to South Texas in June 2016.

MMP institutionalizes procedures for third party missing migrant reports, providing a focal point

of collaboration and integration, to prevent deaths and increase rescues of missing migrants.

MMP also assists county medical examiner offices, forensic pathologists, and foreign consulates

in the identification and family reunification of deceased migrants. Information obtained from

this multi-agency and multi-national effort provides closure to families and helps to shape CBP

operations.

In June 2017, USBP Headquarters agreed to make this pilot into an official program under its

Foreign Operations Division (FOD). FOD has been working with Tucson and South Texas

Sectors to identify best practices and develop an Internal Operating Procedure (IOP) for the

MMP. As of November 2017 the MMP has expanded to the El Paso and Yuma Border Patrol

Sectors with a full roll out across the entire southwest border completed by the summer of 2018.

USBP has several programs and initiatives focused on increasing border safety and minimizing

the risk of migrant deaths. As an example, USBP has more than 246 BORSTAR Unit agents

who are trained and certified for advanced search and rescue operations. BORSTAR agents are

located strategically along the Southwest border and are on call and available to respond to high-

risk emergent situations for extended periods. In FY 2017 alone, USBP completed over 3,000

rescues. USBP medical initiatives provide emergency medical response training to agents

throughout the entire border region specifically focusing on high-risk areas. USBP currently has

more than 1,200 certified Emergency Medical Technicians, as well as paramedics and first

responders. USBP also has 85 active rescue beacons strategically placed throughout the

Southwest border, to save the lives of illegal aliens in distress.

I am committed to continuing these efforts to provide robust search and rescue response

capabilities to mitigate risk in remote and austere environments as well as continuing to develop

innovative ways to address these challenges proactively. I will continue to ensure CBP

complements DHS efforts to provide public awareness through communicating the dangers of

crossing the southwest border both within the United States and abroad. USBP complements the

DHS media campaign plan to reach out to potential migrants in their home countries to

discourage them from attempting to enter the United States illegally in the first place.

Question 21a: Will you pledge to conform CBP enforcement practices with the

recommendations of the Task Force on 21st Century Policing? The Task Force recommended

that: “To embrace a culture of transparency, law enforcement agencies should make all

department policies available for public review and regularly post on the department’s website

information about stops, summonses, arrests, reported crime, and other law enforcement data

aggregated by demographics.”

ANSWER: Since 2014, CBP has implemented and continues to implement significant policy,

procedural and programmatic reforms with respect to transparency initiatives CBP has taken and

variety of steps and implemented policies to increase transparency, accountability. For example,

to improve the public’s access to information, CBP has posted policies, reports and statistics

consistent with the recommendation from the Task Force cited in the question, including:

1. Use of Force Policy, Guidelines and Procedures Handbook,

https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf

2. Use of Force Review, Cases and Policy from the Police Executive Research Forum,

https://www.cbp.gov/sites/default/files/documents/PERFReport.pdf

3. Use of Force Case Summaries, https://www.cbp.gov/newsroom/stats/cbp-use-

force/case-summaries

4. Use of Force Statistics, https://www.cbp.gov/newsroom/stats/cbp-use-force

5. CBP Discipline Overview FY 2015,

https://www.cbp.gov/sites/default/files/assets/documents/2017-May/FY15-discipline-

report-5-4-17.pdf

6. Standards to Prevent, Detect and Respond to Sexual Abuse and Assault in

Confinement Facilities, https://www.gpo.gov/fdsys/pkg/FR-2014-03-07/pdf/2014-

04675.pdf

https://www.cbp.gov/sites/default/files/documents/UseofForcePolicyHandbook.pdf

https://www.cbp.gov/sites/default/files/documents/PERFReport.pdf

https://www.cbp.gov/newsroom/stats/cbp-use-force/case-summaries


https://www.cbp.gov/newsroom/stats/cbp-use-force

https://www.cbp.gov/sites/default/files/assets/documents/2017-May/FY15-discipline-report-5-4-17.pdf

https://www.cbp.gov/sites/default/files/assets/documents/2017-May/FY15-discipline-report-5-4-17.pdf

https://www.gpo.gov/fdsys/pkg/FR-2014-03-07/pdf/2014-04675.pdf


7. CBP Policy on Zero Tolerance of Sexual Abuse and

Assault, https://www.cbp.gov/employees/eeo/ztp/cbp-policy-zero-tolerance-sexual-

abuse-and-assault

8. CBP Enforcement Statistics, https://www.cbp.gov/newsroom/stats/cbp-enforcement-

statistics

9. Southwest Border Migration Statistics, https://www.gpo.gov/fdsys/pkg/FR-2014-03-

07/pdf/2014-04675.pdf

10. Arrests of criminal aliens by U.S. Border Patrol,

https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-

statistics

11. Homeland Security Advisory Council – Interim Report of the Integrity Advisory

Panel - http://www.dhs.gov/sites/default/files/publications/DHS-HSAC-CBP-IAP-

Interim-Report.pdf

If confirmed, I plan to sustain and continue to enhance our commitment to transparency related

to our law enforcement mission.

Question 21b: Will you pledge to provide more transparent data on the use of force by CBP

agents, including the perceived race or ethnicity of all individuals stopped, and the resulting

disposition of the stop or search, including the length of the encounter (i.e. search, arrest, use of

force)?

ANSWER: CBP’s authority to enforce the law appropriately bears the responsibility of

accountability, which includes integrity and a commitment to continued transparency. The

current CBP Use of Force Policy Handbook is available for public view on CBP.gov. In

addition, CBP continues to provide the public with updated monthly use of force statistics and

summaries for use of force cases reviewed by the CBP National Use of Force Review Board,

which can be found here: https://www.cbp.gov/newsroom/stats/cbp-use-force. In FY 2017, the

CBP National Use of Force Review Board (NUFRB) convened three times, deliberating on a

total of 12 CBP use of force incidents. Additionally, the CBP Use of Force Incident Team

(UFIT) review boards – known as Local Use of Force Review Boards (LUFRB) reviewed 162

use of force incidents. CBP released the results of a number of incidents reviewed by the

NUFRB and will release remaining cases once they have completed the full review process. The

case summaries can be found here https://www.cbp.gov/newsroom/stats/cbp-use-force/case-

summaries.

Currently, CBP does not collect the race or ethnicity of individuals who are encountered in the

course of CBP’s law enforcement operations. CBP does capture and routinely releases

information on the nationalities of persons apprehended crossing between ports of entry or

subject to adverse immigration actions at ports of entry.

Question 21c: Will you pledge to review my legislation, the End Racial and Religious Profiling

Act (ERRPA, S. 411), and let me know if you can incorporate ideas or best practices from this

legislation into CBP practices?

https://www.cbp.gov/employees/eeo/ztp/cbp-policy-zero-tolerance-sexual-abuse-and-assault

https://www.cbp.gov/employees/eeo/ztp/cbp-policy-zero-tolerance-sexual-abuse-and-assault

https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics

https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics



https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics

https://www.cbp.gov/newsroom/stats/cbp-enforcement-statistics/criminal-alien-statistics

http://www.dhs.gov/sites/default/files/publications/DHS-HSAC-CBP-IAP-Interim-Report.pdf

http://www.dhs.gov/sites/default/files/publications/DHS-HSAC-CBP-IAP-Interim-Report.pdf

https://www.cbp.gov/newsroom/stats/cbp-use-force



ANSWER: I can commit to review this proposed legislation, consider if we can incorporate

ideas and best practices, and have my team work with your staff to provide any appropriate

technical assistance.

Question 22: As you may know, drawback law is the refund of duties, taxes and certain fees

paid on importation of articles into the U.S. when those articles, or like-kind articles, are

exported or destroyed.

Drawback, and other duty deferral regimes, are a long-standing feature of U.S. law that enable

U.S. manufacturers to compete on a “level playing field” with their foreign competitors. By

refunding duties, taxes and fees paid on imports when there is a similar-classed export, drawback

strongly promotes U.S. exports, manufacturing, capital investment, and job creation.

Congress most recently expanded drawback privileges in 2016 with the passage of TFTEA,

providing even greater opportunities for U.S. exporters to take advantage of this statutory

benefit.

If you are confirmed as Commissioner of U.S. Customs and Border Protection, will you and your

office support our U.S. manufacturers and workers by maintaining and enforcing legislation such

as duty drawback and deferral programs in order to promote growth in U.S. manufacturing and

exports?

ANSWER: As Acting Commissioner of CBP, and, if confirmed, I am committed to upholding

the laws of the United States, including drawback as a long-standing trade facilitation law.

Drawback, and other duty deferral regimes, are important features of U.S. law that enable U.S.

manufacturers to compete on a “level playing field” with their foreign competitors. By

refunding duties, taxes and fees paid on imports when there is a similar-classed export, drawback

strongly promotes U.S. exports, manufacturing, capital investment, and job creation.

CBP takes very seriously its dual role of trade facilitation and protection of the revenue. I have

been, and will continue to work closely with CBP’s subject matter experts and those in the

Department of Treasury to expeditiously and effectively implement TFTEA’s drawback benefits

provided by Congress to the U.S. business community. CBP will continue to be committed to

administering the drawback and duty deferral laws and will actively work with the Department

of Treasury, and other relevant Partner Government Agencies, to effectively support growth in

U.S. manufacturing and exports.

Question 23a: The Delaware River Ports make up one of the largest fresh fruit importation areas

in the United States, bringing in over $2 billion worth of fruit goods each year. While imports

have increased dramatically over the past couple years and terminal operators are making

significant investments to increase storage capacity and cargo handling, the number of full-time

CBP agriculture inspectors has remained stagnant. Low staff levels make it difficult for my

constituents to process shipments of foreign fruits in a timely manner. This increases the amount

of fruit that spoils before it can be moved to cold storage and creates an incentive for distributors

to import their products through ports outside of Philadelphia.

Does CBP plan to increase the number of permanent agriculture inspectors stationed in

Philadelphia, and if so, when do you expect that increase to occur?

ANSWER: Yes, CBP has articulated existing requirements to increase the number of permanent

Agriculture Specialists, including in the area port of Philadelphia. While CBP is currently at its

full authorized and funded staffing level for agriculture specialists nationwide, the annual

Agriculture Resource Allocation Model (AgRAM) shows a gap of over 700 CBP Agriculture

Specialists (CBPAS) to effectively carry out our mission nationwide, including at the area port of

Philadelphia. The Animal and Plant Health Inspection Service (APHIS) fee allotments to CBP

from the APHIS Agricultural Quarantine Inspection (AQI) user fee revenues are providing full

cost recovery for CBP AQI operations, but only at the current staffing floor of a 2,414

CBPAS. CBP intends to consider multiple options for increasing funding, including potential

fee based or appropriated solutions. CBP anticipates an increase in staffing of CBPAS at

Philadelphia if additional funds become available for hiring.

Currently trade stakeholders and terminal operators utilize Reimbursable Services Agreements

and CBP has provided temporary duty personnel to supplement and support existing staffing

year round to cover peak periods and increases in perishable imports.


THE HONORABLE Patrick Toomey







CBP’s Reimbursable Services Program has entered into eight agreements with Delaware River

terminal operators to provide additional inspection services during peak seasons. CBP entered

into agreements with the following stakeholders: Independent Container Line, Ltd., Penn

Terminals, Inc., Greenwich Terminals LLC, Network Shipping Ltd. (Del Monte Fresh Produce),

Gloucester Terminals LLC, Turbana Corp., Interoceanica Agency (Isabella Shipping Company),

and Diamond State Port Corp.

Question 23b: How does CBP determine staffing levels at our nation’s ports, specifically for

agriculture inspectors?

ANSWER: To objectively identify baseline staffing requirements for CBP agriculture

protection operations, CBP developed the AgRAM. Like the CBP Workload Staffing Model, the

AgRAM is an analytical tool developed by CBP to calculate the required number of CBP

Agriculture Specialists based on the volume and composition of arrivals. The model takes into

account both the legally mandated inspection of regulated cargo as defined by United States

Department of Agriculture (USDA) - Animal and Plant Health Inspection Services (APHIS) and

the risk-based inspection of passengers and cargo. The model takes into account the volume of

cargo, conveyance, and passenger arrivals in all environments as reported by Operations

Management Report data. The AgRAM also utilizes USDA APHIS data to determine the

various work counts in all environments and incorporates pest risk levels as determined by the

USDA. The AgRAM:

o Accounts for the volume of cargo, conveyance, and passenger arrivals in all environments;

o Incorporates pest risk levels as determined by APHIS to ensure sufficient staffing is

allocated for inspection of high, medium, and low risk commodities, passengers, and

conveyances;

o Factors AQI Trade Facilitation Programs, e.g. the National Agriculture Release Program

(NARP);

o Incorporates a utilization factor to ensure staffing levels can process peak workloads within

acceptable time frames, additionally it has the capability of determining overtime staffing

needs.

The AgRAM was subject to an independent assessment by Deloitte Consulting, LLP, in Fiscal

Year 2015. The assessment determined the AgRAM’s methodology and approach to identifying

staffing needs is thorough and efficient. Internally, the AgRAM is updated each year with the

previous fiscal year’s data and reviewed to ensure the integrity of the results. The model results

are then validated by CBP before being certified by DHS prior to submission to Congress each

fiscal year. The most recent results of CBP’s Agricultural Resource Allocation Model show a

need for an additional 721 CBP Agriculture Specialists through FY 2018.

The AgRAM, combined with other information about resources, threats, and passenger volume

are incorporated into leadership review of how to best allocate CBPAS resources.

Question 23c: What other policies and automated technologies is CBP considering to help

streamline the inspection process for agricultural products in an effort to reduce processing

times?

ANSWER: CBP has delivered several key agriculture-centric automation and interoperability

programs. The efforts have resulted in significant savings by automating data sent to USDA for

mandatory inspections of cargo and for the pest identification process. The implementation of a

single, unified data repository to further automate trade and passenger reporting functions, work

accomplished, transport/export commodity tracking, and exam findings recordation. The goal is

an automated environment that facilitates agriculture data management for purposes of

targeting/selectivity, analysis, reporting, and performance measures, and to support the

Agriculture Resource Allocation Model (AgRAM).

The National Agriculture Cargo Targeting Unit (NACTU) is specifically focused on agricultural

quarantine targeting (animal and plant pest/disease risk). The NACTU researches import cargo

shipments and analyzes national quarantine activity to identify those shipments posing

significant risk. These agricultural quarantine risks relate to shipments with pests, contaminants,

and prohibited agricultural products (including through smuggling activities).

OFO’s Agriculture Programs and Trade Liaison (APTL) and the Office of Information and

Technology (OIT) partnered to build a single window for targeting vessels, recording vessel

inspection data, and communicating vessel risk(s) directly with ATS-4. This technology is

replacing the paper CBP Form AI-288 and re-orienting the Ship Inspection Report (288) into an

electronic collection of vessel inspection data. CBP has deployed and commenced the interface

capability between targeting systems Vessel Risk List, and electronically capturing,

communicating to other ports and maintaining inspection metrics such as: mobile targeting for

high risk commercial vessels with Asian Gypsy Moth (AGM), Khapra Beetle, Mediterranean

fruit fly, and international garbage violating vessels. In addition, this new technology

automatically populates/generates the information into paper report format, eliminating

duplication of work for CBP Agriculture Specialists (CBPAS), such as return to the office and

manually record inspection results in both CBP and APHIS databases, as well as manual

communication with a variety of stakeholders. Economically the contractor research estimated

$2.3M annually in time savings for CBPAS through 288 app utilization during all three phases of

operations: targeting, inspection, and recording/reporting out significant exam results.

The Agriculture Pest Exclusion Coordinating Specialists (APECS) facilitates trade by ensuring

that cargo is not delayed pending identification of non-quarantine plant pests. Since its

development CBP working with APHIS has significantly increased the number of cargo

shipments released at participating ports. The Pharr, Texas Cargo Import achieved a reduction in

cargo processing dwell time from 5 hours to 20 minutes.

Question 24a: As you know, CBP contracts with Centralized Examination Stations (CESs) in an

effort to consolidate cargo inspections at single, private warehouse facilities, which may be

located miles away from the dockside terminal. It is my understanding that the CES in

Philadelphia is only used for intensive exams that require special inspectors, while non-intrusive

and most agriculture exams remain at the terminal. That said, terminal operators in Philadelphia

are concerned that CBP will eventually move all agriculture inspections to the off-site CES

facility, which could raise transportation costs for importers and increase delays for inspections.

Will you commit to working with the terminal operators in Philadelphia before implementing

new inspection policies and procedures?

ANSWER: CBP is committed to working with its public and private stakeholders before

implementing such procedural changes. Local CBP management currently engages in monthly,

quarterly, or as needed agriculture-focused meetings with the maritime operations community;

CES focused meetings; and will begin having a reoccurring Customs Broker meeting. These

engagements provide many opportunities for CBP to provide operational updates and for the

trade community, including terminal operators, to provide feedback and express concerns.

Question 24b: In Philadelphia, does CBP intend to move all non-intrusive and agriculture

inspections from the dockside terminals to the CES?

ANSWER: CBP Philadelphia does not plan to move all non-intrusive and agriculture

inspections from dockside terminals to the CES. A few advantages of having a CES are that the

operation allows CBP to consolidate staffing and resources, eliminate commute time to

numerous terminals and warehouses, and reduce inspection and cargo hold times when multiple

team and/or agencies require inspection. Having the CES is one element of addressing staffing

and resource limitations. However, other factors would need to be analyzed before considering

moving other exams to the CES. As port operations are constantly changing, CBP is also

constantly reviewing its procedures. If the time were to come to consider moving additional

inspections to the CES, CBP will communicate that with the trade community, and stakeholders

will have the opportunity to provide feedback.

Question 24c: Can you explain how CBP monitors and audits CES facilities once they have

been designated by CBP?

ANSWER: Pursuant to Title 19, § 1467, of the United States Code (19 U.S.C. 1467), CBP has a

right to examine any shipment imported into the United States. Per CBP regulations, it is the

responsibility of the importer to make the goods available for examination. No distinction is

made between commercial and personal shipments. If a shipment is selected for examination, it

will generally be moved to a CES for the CBP exam to take place. A CES is a privately operated

facility, not in the charge of a CBPO, at which merchandise is made available to CBPOs for

physical examination. The CES facility will unload the shipment from its shipping container and

will reload it after the exam. The CES concept fulfills the needs of both CBP and the importer

by providing an efficient means to conduct exams in a timely manner. The CBP Port Director

has the authority to review the CES and make adjustments within regulation if necessary. A

CBPO is located at the CES facility to monitor and execute all necessary examinations. CBP

reviews cargo turnaround times and expresses concerns to the CES operator for

improvements. In Philadelphia, CBP and local stakeholders conduct periodic meetings with the

trade community so that concerns can be expressed and addressed timely. The last single-

focused meeting was held with the trade community on August 24, 2017, where stakeholders

were able to express feedback on current operations. On September 14, 2017, CBP attended two

meetings with the Delaware River and Bay Maritime Exchange, the quarterly Maritime

Operations meeting and the CBP-USDA Agriculture Working Group meeting. The last CES

single-focused meeting was November 7, 2017, and a CBP/Philadelphia Brokers Association

meeting was November 9, 2017.

Question 25a: In your testimony, you mentioned that you used your authority under 19 USC

1499 to block imports of seafood made with North Korean forced labor in China. Why did you

use Section 1499 instead of Section 1307 to block the imports?

ANSWER: CBP has multiple legal tools to combat the importation of prohibited merchandise,

including merchandise made with North Korean labor in violation of Section 302A of the

Countering America’s Adversaries through Sanctions Act (Sanctions Act) and merchandise

subject to 19 USC § 1307. CBP received shipments where it had reason to believe that the

merchandise was prohibited from entry pursuant to the Sanctions Act. CBP utilized its well

established authority under 19 USC § 1499 to detain the merchandise so that its admissibility can

be determined. Where CBP has information to believe that merchandise was manufactured with

forced labor, CBP may act under 19 USC § 1307 to withhold release of the merchandise into the

commerce of the United States pursuant to regulations promulgated under section 1307. The

authority under 19 USC §1499 is appropriate for this case and allowed CBP to act quickly to

block the importation until a final admissibility decision is made, but, I can confirm that CBP

intends to continue to use section 1307 withhold release orders whenever appropriate.

Question 25b: Have 30 days lapsed since the imports were blocked?

ANSWER: No. 30 days will lapse on November 13, 2017.

Question 25c: If not, does CBP expect to request an extension of the 30-day window to obtain

more time to review the evidence you have compiled on the forced labor allegations?

ANSWER: CBP is still evaluating information related to the detained shipments to determine

their admissibility. At the 30-day deadline, CBP will take whatever action is warranted with


THE HONORABLE Sherrod Brown







respect to the merchandise based on information that CBP has developed, and pursuant to the

various legal authorities governing the detention or release of merchandise. If the information

does not support a release of the goods within 30 days, then this is treated as a decision to

exclude the merchandise for purposes of 19 USC §1514, and the importer may protest the

exclusion.

Question 25d: Are you now preparing to issue a Withhold Release Order against Chinese

seafood imports more broadly?

ANSWER: With respect to the shipments that are currently detained as discussed during the

hearing, CBP is using our existing legal authorities to enforce the rebuttable presumption,

established by the Sanctions Act, that merchandise made with North Korean labor is prohibited

from entry. Further, CBP is actively collecting and developing additional information on the

region in question and shipments related thereto. To the extent that said information reasonably

indicates that Chinese seafood imports violate 19 USC § 1307, CBP would issue a withhold

release order.

Question 26a: Recent news reports have alleged that Haribo gummy bears are produced in part

with forced labor in Brazil. Has CBP taken the same approach to the gummy bear news reports

that it did in response to the news reports of North Korean forced labor being used in Chinese

seafood products?

ANSWER: With respect to the allegations of forced labor in the carnauba wax industry, the

CBP Commissioner must first issue a Withhold Release Order (WRO) before CBP port directors

may detain suspect merchandise to determine admissibility. CBP remains committed to take

vigorous action to enforce 19 USC § 1307. CBP’s approach to news reports alleging forced

labor in the Brazilian carnauba wax industry differs from its approach with respect to alleged

North Korean labor because the Sanctions Act presumes that merchandise made with North

Korean labor violates 19 USC 1307 and is therefore prohibited, whereas allegations with respect

to the Brazilian Carnauba wax industry are not subject to the Sanctions Act presumption and

prohibition.

Question 26b: Has CBP blocked any imports of Haribo gummy bears under Section 1499 or

Section 1307 as a result of the reports?

ANSWER: CBP has begun to review this serious allegation and has been in contact with our

partners at Immigration Customs Enforcement (ICE) – Homeland Security Investigations (HSI)

to further consider the available information. To date, we have not detained any shipments

related to the recent news on the Brazilian carnauba wax industry and downstream products

because we have not developed information which supports this action at this time.

Question 27a: Thank you for your response to the letter Sen. Portman and I and some of our

colleagues sent on July 11, 2017 regarding implementation of the Enforce And Protect Act

(EAPA). In that letter, we asked CBP to revise its rule EAPA to ensure that “interested parties,”

as included in the statute, are able to participate in the duty evasion allegations. In your response

you identified several ways that interested parties could participate in the investigation but did

not commit to revising the rule to reflect the statute’s broader term. Is it your position that CBP

will not revise the rule to reflect the statute’s intent that a much broader group of interested

parties can participate in the investigation?

ANSWER: Our current definition of “parties to the investigation,” is based on the statute’s use

of the phrase “interested party that filed an allegation”, includes the interested party who filed the

allegation and the alleged evader, to clarify that fundamental procedural rights under EAPA are

limited to only the party that filed an allegation. CBP is evaluating whether to amend the

regulatory definition of “parties to the investigation,” for its final rulemaking.

Question 27b: How many times since EAPA was passed have “interested parties” used the ways

included in your response letter to participate in the allegations?

ANSWER: We would not necessarily be aware of situations where parties to the investigation

were provided information by third parties and then filed it in our proceedings. As for the other

methods, we have not yet encountered this. We have recently clarified these alternate methods

for providing information to CBP on our EAPA website. As we gain experience with more

investigations, we anticipate that parties will avail themselves of these options in the future.

Question 28a: In our letter we also expressed concern that CBP was requiring allegations to

identify the importer in order for them to be considered by your agency. In your response you

indicated that you were working on a potential legislative change that would allow CBP to

initiate duty evasion allegations where the importer is not identified. Why do you believe you

need legislation to make this change to CBP’s allegation proceedings?

ANSWER: The EAPA interim final regulations currently require the identification of the

importer in the allegation because a party might argue that CBP's identification of the importer's

name violates the Trade Secrets Act. Thus, a legislative change exempting this from the Trade

Secrets Act would permit CBP to reveal the identity of the importer who may be entering

merchandise as to evasion and avoid potential violation of the Trade Secrets Act.

Question 28b: What is the status of the potential legislative fix that you mentioned?

ANSWER: CBP has developed a legislative proposal that is currently being vetted through the

interagency clearance process.

Question 28c: And since EAPA was signed into law, how many duty evasion allegations has

CBP refused to act on because the importer was not identified?

ANSWER: There has not been an allegation where CBP has declined to initiate upon an

investigation the importer was not identified. Any cognizable allegation received by CBP will be

pursued, and CBP has tools which may allow it to identify an importer and pursue appropriate

enforcement actions. The Trade Secrets Act only limits the identification of the importer by

CBP through EAPA, not the pursuit of the underlying allegation or violation.

Question 29: While your nomination is considered by the Finance Committee, many of the

decisions you make and the policies that you will implement fall under the jurisdiction of the

Homeland Security and Governmental Affairs Committee, of which I am the Ranking Member.

Will you provide a prompt response in writing to any questions addressed to you by any Senator

of the Homeland Security and Governmental Affairs Committee, regardless of party?

ANSWER: I have worked closely with the Senate Committee on Homeland Security and

Governmental Affairs in the past, and understand its important role in conducting oversight of

CBP. If confirmed, I will ensure that CBP provides appropriate information in response to

requests from the committee, regardless of party affiliation.

Question 29b: The Justice Department’s Office of Legal Counsel has published an internal

memo stating that the executive branch has no obligation to respond to requests for information

from individual members of Congress, including Ranking Members of committees. This

represents an effort to stonewall minority and other members of Congress as we perform

oversight of federal agencies. If confirmed, one of your central tasks will include facilitating

responses to Congressional requests for information. Do you commit to fully respond to requests

for information from members of congressional oversight committees, regardless of party?

ANSWER: I have worked closely with the Congress in the past, have testified over a dozen

times, and given over 50 briefings to Members and staff, as well as hundreds of written

responses and reports. I understand and appreciate its important role in conducting oversight of

CBP, and, if confirmed, I will ensure that CBP provides appropriate information in response to

requests from the committee, regardless of party affiliation.

Question 30a: The President has ordered the hiring of 5,000 additional Border Patrol agents and

10,000 new immigration officers. There are approximately 23,000 officers that currently

comprise the CBP Office of Field Operations, although CBP is authorized to have just over

24,000 officers. The CBP staffing model that you helped to develop recommended that CBP


THE HONORABLE Claire McCaskill







have more than 27,000 officers in place. That appears to leave CBP around 4,000 officers short

from the recommended amount.

President Trump has only proposed increases in staffing for Border Patrol and ICE. Does that

concern you?

ANSWER: CBP remains focused on having the right mix of resources at and between our

nation’s POEs. As the CBP mission continues to evolve to meet the threat to the nation and

facilitate legitimate trade and travel, we must continually assess personnel staffing requirement.

CBP utilizes its Workload Staffing Model (WSM) to ensure CBPO staffing resources are aligned

within the existing threat environments, while maximizing cost efficiencies. The WSM is a data-

driven model that incorporates the most recent year’s workload data to determine staffing

requirements and considers factors for future facility enhancements and projected volume growth

in cross-border commercial and passenger traffic. Updated WSM results continue to show a

need for additional OFO capability to fully meet the standards set by statute, regulation, and CBP

policies, assuming maintenance of current processes, procedures, technology, and facilities. The

most recent results – factoring in the additional 2,000 CBPOs funded by the FY 2014 Omnibus –

show a need for 2,516 additional CBPOs through FY 2018. The Administration’s submission of

the updated 2017 WSM demonstrated an important commitment to the requirements it identified,

as did the statement of intent in the President’s FY18 Budget to submit proposals for authorizing

language that would provide user fee funding to address the gap as we have in past years.




CBP has worked aggressively over the past several years to implement a multifaceted

recruitment strategy that improves frontline hiring processes and enhances its ability to meet

hiring goals. CBP continues to strengthen all aspects of hiring, which includes initiatives

designed to attract more qualified applicants, expedite the pre-employment timeline, refine the

hiring process to address all potential bottlenecks, and reduce the attrition rate of the existing

workforce. Staffing the frontline with well-qualified individuals of the highest integrity remains

a top priority for CBP.














Cross-Border Trade Enhancement Act of 2016 (P.L. 114-279).




and over 1.1 million personal and commercial vehicles. In 2017, CBP tentatively selected 64

stakeholders across 54 ports of entry for participation in the RSP (34 air POEs, 4 for air and sea

POEs, one for land POE, and 15 for sea POE). To date the CBP Donations Acceptance Program

(DAP) has approved 17 donation proposals totaling $150 million in planned public and private

sector investment in U.S. POEs and important CBP initiatives. Ten of the 17 proposals have been

approved since enactment of the Cross-Border Trade Enhancement Act in December 2016, while

the others were approved under a predecessor pilot authority provided by Congress. The ten

DAP projects range from infrastructure improvements, partnerships for the provision of

biometrics services and data and donations of luggage for canine training purposes. Partnerships

entered into under DAP have and will continue to enhance border security and promote the safe

and efficient flow of passenger travel and commercial trade.

CBP continues to see a steady stream of applications for new agreements under this legislation,

so while recent results have been very encouraging, continued growth and expanded utilization

of this program is expected to allow CBP to approve new and enhanced services, which could

not be provided without the Cross-Border Trade Enhancement Act.

Question 30b: Why should staffing at Border Patrol and ICE be increased, but not the Office of

Field Operations?

ANSWER: CBP remains focused on having the right mix of resources at and between our

nation’s POEs and continues to address 1,132 CBPO positions vacant as of September 30, 2017.

Updated WSM results submitted to Congress earlier this year continue to show a need for

additional OFO capability to fully meet the standards set by statute, regulation, and CBP

policies, assuming maintenance of current processes, procedures, technology, and facilities. The

most recent results – factoring in the additional 2,000 CBPOs funded by the FY 2014 DHS

Appropriations Act – show a need for 2,516 additional CBPOs through FY 2018. Again, the

Administration did submit the updated WSM and intends to submit proposals for authorizing

language that would provide user fee funding to address the gap as we have in past years.

Question 31a: Does President Trump’s budget proposal give CBP the resources it needs to

achieve operational control of our ports of entry, which he required in his January 25 Executive

Order and defined as “the prevention of all unlawful entries into the United States, including

entries by terrorists, other unlawful aliens, instruments of terrorism, narcotics, and other

contraband.”1 If it does not, what additional resources would be required to do so?

1 Exec. Order 13767, 82 Fed. Reg 8793 (Jan. 25, 2017).

ANSWER: As you know, CBP has the dual mission of preventing suspected terrorists, terrorist

weapons, and other contraband from entering the United States, while also facilitating the flow

of legitimate trade and travel into and out of the United States. CBP ensures that all persons and

cargo enter the U.S. legally and safely through official checkpoints and POEs. CBP’s over

60,000 highly trained employees ensure that the Agency performs its mission with vigilance,

integrity, and professionalism.

The FY 2018 Budget Request will enable the Non-Intrusive Inspection Division (NIID) to

recapitalize the relocatable VACIS and some mobile NII systems, average age over 10 years

with Multi Energy Portals (MEP), at land border crossings and seaports. This recapitalization

provides an opportunity to significantly increase NII capacity at POEs. The MEP concept scans

the tractor at a lower energy (safe exposure for the driver) and the trailer at higher energy (for the

seaport configuration, only the container is scanned). This concept supports a higher throughput

by reducing the total time to scan by eliminating the need for the driver to leave the truck. The

technical throughput of the system will sustain between 100-125 vehicles per hour. Since the

system works at a higher energy for cargo, it will increase the equivalent steel penetration

capability from approximately two inches (VACIS) to eleven inches. In addition, the MEP is

expected to have a lower sustainment cost because it has fewer mechanical parts and a modular

construction. Finally, the concept is designed to free up manpower currently dedicated to NII

roles such as ground guides for enforcement operations. The MEP will be “CBP Network ready”,

which will support transferring image files via the network, either individually or en masse, and

will eventually integrate with CBP enforcement systems further increasing efficiency and freeing

additional manpower for enforcement operations.

The MEP is the enabling technology that will allow CBP to introduce the Model Port concept,

which is being funded by the city of Donna, Texas, through the Donation Assistance Program

(DAP). Unlike typical cargo POEs the Model Port will not have primary and will allow for the

significant increase in the number of containers scanned while at the same time reducing the

processing times for trucks crossing the southern border.

The resources requested in the FY 2018 President’s Budget Request will allow enhanced security

at the ports of entry. CBP maintains a robust process for developing requirements for increased

security across a five-year time horizon to further increase security, within the constraints of

available appropriated funding.

Question 31b: How many additional personnel would be required?

ANSWER: The portion of the FY 2018 President’s Budget Request relating to CBP indicates

requests an additional 714 Full Time Equivalent (FTE) employees in FY 2018. This includes

personnel for AMO, Office of Intelligence, Office of Professional Responsibility (OPR), USBP,

OFO’s National Targeting Center, and the Office of Trade. Additionally, the Administration

submitted the updated 2018 WSM and intends to submit proposals for authorizing language that

would provide user fee funding to address the gap as we have in past years.

Question 31c: Is it even possible to achieve full operational control of ports of entry?

ANSWER: The Office of Field Operations (OFO), within CBP, is relentlessly self-critical in

looking for more efficient and effective ways to accomplish our mission at the ports of entry.

CBP continues to enhance the security of its processes at ports of entry, beginning at the point of

origin for travelers and goods destined for the United States.

It is important to note that most of what OFO does every day is mandated by statute. Every

person and good seeking to be admitted into the U.S. must present themselves to a CBP Officer.

Each day, more than one million people arrive at 328 U.S. POEs by air, land, and sea where

OFO employees prevent the entry of terrorists and instruments of terror, welcome travelers, and

facilitate the flow of goods essential to our economy 24/7. An additional $11 billion worth of

international trade also crosses our border each day.

CBP Officers at the POEs are the face at the border for all cargo and travelers entering the

United States. While serving in this ambassador role to the Nation’s trade community and

internationally traveling public, over 30,000 CBP Officers, Agriculture Specialists, Trade and

Revenue Staff, and Mission Support Staff, support CBP’s critical anti-terrorism mission; enforce

import and export laws and regulations of the U.S.; implement immigration policy and programs;

and protect the U.S. from foreign animal and plant pests, diseases, and invasive species that

could cause serious damage to U.S. crops, livestock, pets, and the environment.

CBP has considerable risk management capability and physical control of the movement of

people and goods seeking to enter our country through lawful ports of entry. If confirmed, I will

continue to work with you, your staff, and Congress to outline requirements for further

improvement.

Question 32: Are you concerned that our ports of entry are understaffed? Why or why not?

ANSWER: CBP is always concerned about having the right mix of resources at and between

our nation’s POEs. Sufficient staffing at the POEs continues to be a key element of a prosperous

economy and secure border. As one of the questions noted above, I had a leadership role in the

development of the CBP WSM, the first rigorous, comprehensive effort to accurately capture our

staffing requirements at ports of entry. This work was driven by demonstrated operational need,

externally reviewed, and supported by extensive academic research into the economic impact

and benefits of CBP Officer staffing. CBP staffing increases at ports of entry contribute directly

and indirectly to the U.S. economy. This report is now provided annually, along with initiatives

implemented to enhance our processes, and an assessment of how we can continue to innovate to

improve service.

In 2013 and 2014, the extent to which staffing and wait times affect the local and national

economy was studied by the National Center for Risk and Economic Analysis of Terrorism

Events (CREATE), a DHS Center of Excellence in Research and Education. In 2013, CREATE

completed a report titled “The Impact on the U.S. Economy of Changes in Wait Times at Ports

of Entry.” Their analysis found that an increase or decrease in staffing at the POEs has an

impact on wait times and therefore on the U.S. economy. The impacts begin with changes in

tourist and business travel expenditures and with changes in freight costs. These changes, in

turn, translate into ripple, or multiplier, effects in port regions and the overall U.S. economy. In

summary, CREATE found that the impacts on the U.S. economy of adding 33 CBPOs (their

baseline) are $65.8 million increase in Gross Domestic Product (GDP), $21.2 million in

opportunity cost savings, and 1,094 annual jobs added. While the U.S. Travel Association found

every 33 overseas travelers creates one new American job (Travel Means Jobs, 2012),

CREATE’s findings equate to 33 new American jobs per CBPO added.

Leveraging that analysis, CREATE published an additional report titled “Passport Inspection

Wait Time at U.S. International Airports and Its Economic Impacts” in February 2014. The

analysis found that average passport inspection wait time at U.S. airports rose by 25 percent from

2010 to 2013, and the amount of time waited by travelers by 45 percent. Given projected

increases in passenger volumes through 2018, they estimated that CBP-OFO resources will need

to grow by 4 percent per year to stabilize wait times at their current levels. The analysis also

found that an increase or decrease in staffing at the airports has an impact on wait times and,

therefore, on the U.S. economy. The impacts begin with direct changes in tourist and business

travel expenditures of foreign to the United States, as well as some offsetting increased travel by

U.S. resident tourist and business travel abroad. These changes, in turn, translate into ripple, or

multiplier, effects on the overall U.S. economy. Numerous other studies have been conducted on

the economic impact of wait times at the POEs.

In addition, the economic impact of CBP staffing, CBP is committed to ensuring the security of

our Nation’s borders, while continuing to facilitate legitimate travel and trade. Sufficient

staffing resources are a vital component of ensuring that CBP maintains the highest level of

vigilance along the borders. This can only be achieved with a specific strategy to maximizing

the use of current resources through overtime and optimal scheduling practices; pursue

alternative sources of financing through legislative proposals adjusting user fees; and continuing

to implement transformative initiatives to reduce costs and mitigate staffing requirements.

As noted above, the most recent results of CBP’s Workload Staffing Model for CBPOs and

Agricultural Resource Allocation Model – factoring in the additional 2,000 CBPOs funded by

the FY 2014 Omnibus – show a need for 2,516 additional CBPOs and 721 CBP Agriculture

Specialists through FY 2018. To close the gap for CBPOs, CBP proposed minimal increases for

the IUF and COBRA user fees with the submission of the FY 2018 President’s Budget to

Congress which would allow CBP to fund the positions identified in the FY 2017 Resource

Optimization Strategy without requiring the use of appropriated funding.

Question 33a: In your position as Acting Commissioner, have ever you raised a concern about

staffing levels with former Secretary Kelly or Acting Secretary Duke?

ANSWER: CBP is grateful for former Secretary Kelly’s support and the continued support of

Acting Secretary Duke on a variety of issues, not the least of which are CBP’s staffing

requirements. DHS is well-versed in the staffing needs of CBP, including those embodied in the

WSM and other reports. We have discussed our staffing needs with DHS on many occasions

and have briefed them on our models. We have also discussed our hiring challenges with DHS

and their guidance and partnership in effectuating a resolution to these challenges continues to be

critical. We also discuss staffing levels in the context of the annual budget submission and the

decisions made within the FY 2018 President’s Budget Request in support of CBP’s most critical

needs.

Question 33b: If so, what was your concern?

ANSWER: As noted above, we have consistently engaged with DHS leadership. Within the

FY 2018 President’s Budget Request, we have outlined our intentions to increase the USBP and

AMO workforce, the National Targeting Center (which is part of OFO), our trade and revenue

staffing, and a number of mission critical support positions. CBP continues to use our workload

staffing models and use fee requests to seek balances support of our resource needs.

Question 34: Given that President Trump’s budget proposal includes no additional funding for

CBPOs at ports of entry, it’s clear that if you have raised staffing concerns, you have been

unsuccessful to encourage any addition of staffing at ports of entry. If you are confirmed, how

can we expect you to adequately elevate this important issue and advocate for the critical needs

at our ports of entry?

ANSWER: During my tenure as Acting Commissioner, CBP has received consistent support for

operational and staffing needs both at and between ports of entry. While the FY 2018 proposal

includes initiative hiring requests for Border Patrol Agents and Air and Marine Pilots and

Interdiction Agents, as noted above, the Administration’s submission of the updated 2017 WSM

demonstrated an important commitment to the requirements it identified, as did the statement of

intent in the President’s FY18 Budget to submit proposals for authorizing language that would

provide user fee funding to address the gap as we have in past years.

As mentioned in question 30a, I led the development of the WSM, and remain convinced of its

validity and principles, including the economic benefits of adequate CBP staffing at ports of

entry. I am a subject matter expert in these issues, have had direct access to and support from

leadership at DHS and OMB since I became Acting Commissioner, and, if confirmed, would feel

fully empowered to continue to elevate and advocate with regard to CBP Officer staffing.

Question 35: Senator Roberts and I helped get a bill passed that codified DHS’s responsibilities

related to securing the food and agriculture sector. CBP Agriculture Specialists play a critical

role in helping to secure our food and agriculture sectors.

According to the staffing model for CBP’s Office of Field Operations that you were responsible

for developing, we have a deficit of more than 600 CBP Agricultural Specialists. If you are

confirmed, what will you do to make sure that hiring additional Agriculture Specialists is a

priority for CBP?

ANSWER: If confirmed, recruiting, hiring, and sustaining our front line workforce, including

CBP Agriculture Specialists (CBPASs), will remain my top mission support priority. CBP

Agriculture operations are largely funded by an Animal and Plant Health Inspection Service

(APHIS) Agricultural Quarantine Inspection User Fee (AQIUF). APHIS recently reassessed

user fee rates to try and encompass costs associated with Agriculture Quarantine Inspection

operations for both APHIS and CBP. In 2015, the new/adjusted fees went into effect, but have

not resulted in sufficiently increased collections to allow for additional hiring. To date, APHIS

fee allotments from the user fee revenues have not fully covered the cost of CBP agriculture

operations at the current staffing level; which is below the AgRAM recommendation. I intend to

continue to engage USDA to address this discrepancy, and CBP and APHIS have agreed to

revisit AQIUF fee rates in FY 2018.

In the interim, CBP is attempting to optimize operational efficiencies and assess risks to better

assign mission priorities. Additionally, the gap in CBP Agriculture Specialist staffing will be

partially mitigated through the expansion of agriculture-related Business Transformation

Initiatives (BTI) such as mobile technology which has benefitted the trade community while

providing savings for CBP.

For example, in FY 2016, CBP conducted an analysis at Port Everglades where mobile tablet

technology initially was deployed. The study found that the use of the tablet to conduct

agricultural releases of cargo as opposed to the use of a systems release for cargo release creates

a 98 percent time savings within the release process. Specifically, the average release time drops

from 4 to 6 hours to 5 minutes. According to trade community interviews, the use of the tablet

for the 21,000 tailgate inspections last year at Port Everglades resulted in approximately $20

million savings in additional landed costs (reduction of overtime for equipment and local

warehouse personnel, late gate fees, truck-related costs, and other non-CBP costs that commonly

occur in 20 percent of agriculture shipments). When compared to the initial investment of

$226,000, OFO has delivered a significant return for its initial investment at just a single POE

and continues to expand these capabilities nationwide.

Question 36a: President Trump’s budget proposal does include $110 million for Non-Intrusive

Inspection Systems that scan cargo as it passes through ports of entry.

Will President Trump’s funding request achieve 100% screening of cargo and passengers at all

ports of entry?

ANSWER: The $110 million for Non-Intrusive Inspection (NII) systems does not allow CBP to

scan with NII technology, 100 percent of cargo and passengers at all ports of entry for

contraband – without impact to trade and travel. CBP does screen 100 percent of cargo and

examines, through physical search or NII means, 100 percent of cargo that is deemed high-

risk. In addition, CBP scans more than 99 percent of the cargo arriving into the US via seaports,

land borders, and mail express facilities for the presence of radiation.

Currently, CBP operates 305 Large Scale NII systems at POE and Border Patrol Checkpoints

throughout the United States. Containerized cargo or truck cargo identified as high risk by CBP

is x-rayed to determine if further search is necessary. With the current x-ray technology

deployed it would be virtually impossible for CBP officers to x-ray all containers prior to their

release. The systems are standalone and primarily located in secondary inspection. As currently

deployed, conducting 100 percent scanning with NII systems would create substantial cargo

release delays throughout the United States.

However, CBP is actively working to assess new technology and concepts of operations to

increase the volume scanned. At present, CBP is conducting technology demonstrations on a

new Large-Scale drive-through x-ray system(s) to determine the effectiveness of utilizing NII

systems in primary inspection to scan a larger portion of vehicles.

The new systems are Drive-Through Multi Energy Portal Systems (MEPS). The key difference

with these new systems allows the driver to stay in the vehicle while it is being x-rayed. The cab

and driver will pass through the portal which will be x-rayed at a low dose and as the truck

proceeds through the portal the truck and cargo will be x-rayed at a higher dose. These systems

have passed radiation safety tests and ANSI safety standards. In effect, CBP can increase NII

scanning from approximately 15-20 trucks per hour, as we do now, to potentially >50 trucks per

hour (based on vendor specifications). In Fiscal Year 2018, these MEPS will be tested at two

ports of entry along the Southern Border and at a major east coast seaport. Based on the results,

CBP plans to deploy the system(s) at high-volume ports of entry along the Southwest Border and

major seaports which will allow CBP to scan a higher portion of arrival cargo and personal

vehicles arriving at the United States. The $110 million would allow CBP to install this new

type of technology at many major ports of entry throughout the United States which will

significantly increase the number of inbound containers x-rayed without jeopardizing the

facilitation of cargo and vehicles.

Question 36b: What will it take to get to a 100% screening standard?

ANSWER: The Department takes its responsibility to ensure the security of all goods and

containers entering the United States very seriously, and is committed to mitigating any threat to

our citizens and national interests. DHS remains committed to advancing container security

toward compliance with the law. DHS has produced numerous reports and analysis across the

last two Administrations on what 100 percent scanning, which is currently under Secretarial

waiver, would entail. While DHS continues to work on improving scanning technologies at

seaports, the Department is expanding its efforts through broader interagency engagement to

optimize solutions for securing all goods entering the United States. In so doing, DHS and its

partners are considering more holistic approaches to addressing this challenge, that may include

changes to policy and risk-based approaches to scanning cargo entering the country, creating a

layered security risk based approach.

CBP does currently perform 100 percent screening of passengers and cargo through a variety of

systems and processes using a layered risk management approach. Currently, CBP operates 305

Large Scale NII systems at ports of entry and Border Patrol Checkpoints throughout the United

States. Containerized cargo or truck cargo identified as high risk by CBP is x-rayed to determine

if further search is necessary. With the current x-ray technology deployed it would be virtually

impossible for CBP officers to x-ray all containers prior to their release. The systems are

standalone and primarily located in secondary inspection. As currently deployed, conducting

100 percent scanning with NII systems would create substantial cargo release delays throughout

the United States.

CBP remains committed to maximizing pre-lading examinations of all high-risk cargo and

increasing the percentage of containers scanned before they are laden on vessels destined for the

US.

Question 36c: Regarding maritime security, do you plan to implement the 9/11 Act requirement

for 100 percent scanning of all cargo container shipments or will you continue to support CBP’s

current approach of identifying and examining high-risk shipments?

ANSWER: DHS remains committed to advancing container security toward compliance with

the law. To move toward 100 percent scanning of cargo containers, DHS must not only enhance

its own programs and layers of defense, but collaboratively build new partnerships with foreign

governments and private sector entities. These partnership efforts must address the specific

nuclear/radiological threat central to the objectives of the 100 percent scanning requirement by

increasing the amount of U.S. bound cargo scanned, improving global scanning capacity overall,

reducing the volume of radiological/nuclear materials out of regulatory control, and improving

security in other vectors. In addition, we must take a more comprehensive view of the broader

risk landscape to identify and build resilience against other threats that could disrupt the entire

global supply chain.

Question 37: Can you give a sense of the scale of how much more traffickers rely on routes that

go through ports of entry, than those that cross in more remote border areas?

ANSWER: Based on intelligence reporting and seizure data, the CBP Office of Intelligence

assesses that most hard drugs (cocaine, heroin, methamphetamine, and synthetic opioids) are

smuggled through the POEs along the Southwest Border (SWB). We believe that the relatively

small size and high value of these loads make smuggling through the POEs the most viable

means to move these drugs. In the case of marijuana, the bulk nature and relative low value of

this drug means that it is predominately smuggled into the United States between the POEs. In

the case of fentanyl and other synthetic opioids, these drugs are generally smuggled through the

POEs at the land borders in privately-owned vehicles (POVs) and are normally part of poly-drug

loads. An increasing number of seizures of hard narcotics and synthetics are being made in the

express consignment and international mail environments as well.

We assess with high confidence that when traffickers engage in hard narcotics smuggling via

land borders, they rely on routes through the POEs more often than traffickers that utilize remote

border areas. The terrain and geography in remote areas often provide operational impediments

to the trafficker, and when you pair the terrain obstacle with the fact that narcotics traffickers

rely on in many cases physical security scouts and counter intelligence tactics to monitor the

movements of narcotics, both factors greatly increase the preference to move narcotics through

POEs in a semi-controlled smuggling operation, rather than in between or around a POE.

Question 38: If we increase enforcement between ports of entry by expanding the Border Patrol,

how do you expect transnational criminal organizations (TCOs) will respond?

ANSWER: By increasing enforcement between the POEs by expanding the U.S. Border Patrol,

TCOs will likely shift operations to locations with less Border Patrol presence. Also, TCOs may

increase the use of “non-conventional smuggling tactics” such as tunnels, Unmanned Aerial

Systems, and semi-submersible vessels. TCOs may also incite violence towards Border Patrol

Agents when encountered in an attempt to avoid capture or loss of narcotics load. CBP may also

see a change in tactics to increase human smuggling operations at POEs and the recent trend of

increased narcotic smuggling between POEs may reverse.

Question 39: If we increase enforcement between ports of entry by building a border wall, how

do you expect TCOs will respond?

ANSWER: TCOs will likely respond much the same way to the increase enforcement between

POEs by building a border wall as they would to an increase of enforcement between the POEs

by expanding the Border Patrol. In the past, TCOs have adapted and shifted operations to

locations they feel are more vulnerable between the POEs or increase – in volume and

sophistication – smuggling attempts at the POEs. Increased enforcement either through a

manpower surge or an expansion in infrastructure could lead to a change of tactics, such as more

frequent smuggling attempts with smaller loads. An increase in agent assaults as TCOs become

more desperate to get their commodities (narcotics or people) across the border successfully is

also likely. CBP may also see a change in tactics to increase human smuggling operations at

POEs, and the recent trend of increased narcotic smuggling between POEs may reverse.

Question 40: The President requested $1.6 billion to build 74 miles of border wall and

replacement fencing in 2018. At $21.6 million per mile, that’s more than triple what it cost to

build existing fencing. I understand that the Border Patrol in April compiled a list of operational

requirements for the Southwest Border.

Will you commit to allowing my staff to review the data related to the Southwest Border

Capability Roadmap if you are confirmed as CBP Commissioner?

ANSWER: Yes, I will commit to allowing your staff to review the data. My team has already

taken steps to provide context as well as data. On October 26, 2017, U.S. Border Patrol provided

your staff members an extensive briefing regarding the Capability Gap Analysis Process as well

as the Capabilities Roadmap. At this time, U.S. Border Patrol walked through some of the data

provided by the sectors in support of this process. Due to the amount of data provided, follow up

meetings are being scheduled to further walk through the border investment strategy and the data

that supports additional infrastructure and technology requests. I am committed to providing

Congress the data needed to understand our requirements and the strategy we are employing to

meet those requirements.

Question 41: What data, metrics, and cost-benefit analyses were used to determine that 74 miles

of wall and replacement fencing is the best and most cost-effective method for deterring the

illegal entry of people, drugs, and contraband into the country?

ANSWER: The U.S. Border Patrol maintains a Capabilities Gap Analysis Process (CGAP) that

begins with input from the sector level, and has identified the necessary capabilities to secure the

border. The four key Master Capabilities are: Domain Awareness, Impedance and Denial (I&D),

Access and Mobility, and Mission Readiness. The USBP developed a comprehensive,

repeatable methodology to help assess its southwest border Impedance and Denial needs. A key

component of this is a decision support tool, developed to help evaluate and prioritize

investments. Since implementation of CGAP in 2014, USBP field commanders have

consistently identified impedance & denial, domain awareness, access and mobility and mission

readiness as priority capability gaps at and along the Southwest border. The analysis is intended

to assist USBP in identifying locations along the Southwest border that would benefit from an

impedance & denial solution and prioritizing the locations where I&D solutions are needed most.

This analysis helped inform the requirements that were advocated for in both the FY 2017

Budget Amendment and the FY 2018 Budget Request.

The 74 miles requested includes 60 miles of border wall requirement in the Rio Grande Valley

and 14 miles in San Diego. In the case of RGV, the wall requirement will support continued

barrier requirements originating from field commanders of the busiest and most vulnerable areas

of the southwest border. In FY 2016 the Rio Grande Valley Sector had over 186,000

apprehensions and seizures of over 327,000 pounds of narcotics.

The 14 miles of wall in San Diego will replace dilapidated barrier to recapitalize on previous

investments and to sustain operational gains that have been achieved in that area. In FY 2016

this portion of barrier had over 800 breeches in the existing infrastructure and no longer met

USBP’s operational requirements.

The USBP has analyzed statistical information evaluating the impacts of border barrier on border

security operations. That analysis shows that past use of barrier has had many positive effects

that include increased operational control and improved quality of life, including safety, for

border communities. USBP has seen illicit drug and human smuggling activity shift from areas

where border walls are deployed to other areas with limited or no border walls.

Securing the border requires an integrated approach including infrastructure such as border wall

and road access, surveillance technology, response capability and personnel. Border wall

provides an important capability to impede or deny illegal crossings in those areas where it is

applied, as demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but it is not effective

alone, and is not an appropriate solution for every area of the border. Where it is applied, border

wall must be supported by the ability to detect activity through advanced surveillance

technology, and the ability to respond effectively with mobile, trained personnel.

Given the dynamic nature of the border environment, all operational analyses must be regularly

revisited. USBP will repeat the impedance & denial analysis annually as part of its requirements

management process to leverage the latest threat and risk information and inform future budget

requests.

Question 42: Will the federal government exercise eminent domain to seize private property in

order to build the wall that President Trump has ordered?

ANSWER: DHS only acquires real property that is necessary to meet DHS mission

requirements. The preferred method of obtaining interest in real property is through negotiating

an offer to sell based upon the property’s fair market value. DHS avoids, with few exceptions,

any acquisition of real property through eminent domain. However, in situations where

voluntary acquisition is not possible, DHS/CBP may have to consider acquisition through

condemnation.

Question 43: How many private land owners will have their property seized in order to build

the wall?

ANSWER: At this stage, DHS/CBP cannot state with certainty how many landowners will be

impacted by new border wall construction requirements. However, as previously noted, the

preferred method of obtaining interest in real property is through negotiating an offer to sell

based upon the property’s fair market value. DHS avoids, with few exceptions, any acquisition

of real property through eminent domain.

Question 44: How many miles of additional border barrier do you intend to build along the

Southwest border?

ANSWER: U.S. Border Patrol has assessed the entire Southwest Border to determine

requirements for impedance and denial. CBP is currently developing a comprehensive

assessment of potential requirements for border wall as part of the Border Security Improvement

Plan required by the FY 2017 Omnibus. Any future construction of barrier will be performed in a

manner which is responsive to the operational priorities as identified by Border Patrol leadership.

Question 45: How long will it take to build the wall?

ANSWER: The length of time required to build border wall is predicated on the availability of

funding with which to execute construction projects, the total mileage of wall that will be built,

and any necessary land acquisition.

Question 46: How much will it cost?

ANSWER: At this time, CBP cannot provide a total cost for border wall construction. CBP is

currently developing a comprehensive assessment of potential requirements for border wall as

part of the Border Security Improvement Plan required by the FY 2017 Omnibus. That said, the

Southwest border is a dynamic environment and each mile of border requires a tailored solution.

Costs will vary depending on the type of barrier required by the terrain, traffic, and threats as

well as specific construction and land acquisition requirements.

Question 47: In your view, what are the most effective types of technology that can and should

be deployed along the southwest border in order to increase border security?

ANSWER: One of the most effective ways we could enhance border security would be by

extending broadband wireless capability into more remote areas of the border. One of our

challenges is transmitting data we collect from sensors to command centers and to individual

agents and officers. In fact, we often must construct substantial communications infrastructure

in order to deploy our most capable systems along the border. Providing extensive and secure

broadband capability would provide us greater flexibility and enhance the reach of our sensor

technologies.

Extending and increasing the capability of our tactical communications network is also

important. Our agents and officers need reliable communications for operational efficiency and

agent/officer safety.

With respect to sensors, the most effective systems are those that allow us to detect activity and

then to characterize it. Typically, radars and cameras are useful in this regard. Long range

radars (to detect activity) and cameras that give us high resolution images at a distance (so we

can see, for example, whether someone is carrying a weapon or not) tend to be very effective in

this regard.

Where radars may not be effective (due to terrain or other obstructions), other types of detection

technology are useful. For example, acoustic or seismic sensors can help us detect tunneling and

low flying aircraft.

The specific choice of technology in a given area is highly dependent on terrain, geology, and

threat. While we can describe generally the types of technology that are effective, the actual

deployment approach (for example: mobile, fixed, or relocatable; ground-based or air-based) can

vary with the specific needs of individual operational environments.

Question 48: If confirmed, what method will you use to evaluate each technology’s

effectiveness?

ANSWER: I will continue to use both quantitative and qualitative measures to evaluate the

effectiveness of technology.

When we deploy technology, we establish expectations for its performance based on predictions,

analysis, modeling and simulation, and agent/officer feedback. Those expectations set a baseline

and we then measure the performance against those expectations.

One element of our evaluation is a formally defined process called “operational test & evaluation

(OT&E).” In OT&E, we have our front-line personnel operate the system in the actual

operational environment and collect data to determine if the system meets our expectations, and

how well it supports our mission performance. Some of the things we measure are very precise

technical characteristics—like effective range of radars, sensitivity of x-ray equipment, or

accuracy of predictive analytical models, for example. Others are based on feedback from the

agents and officers—like ease of use of information of systems and clarity of camera images.

We also evaluate how the deployment of technology changes the level of border security. We

can measure things like changes in number of apprehensions, number of incursions detected, and

percentage of detected incursion that are interdicted. We also rely on the expert judgment of our

front-line officers and agents, who can tell us whether illegal activity has increased or decreased

based on their experience and other evidence (like changes in terrain as foot paths are created or

become overgrown, amount of trash and other material left behind, results of interviews with

those apprehended).

Based on what we learn from this evaluation process, we update our plans, expectations, and

requirements for future technologies to ensure we are selecting the most cost-effective tools to

support our mission.

Question 49: GAO concluded in a February 2017 report that CBP has not developed metrics

that could be used to systematically evaluate existing border fencing’s contributions to border

security. GAO recommended that the Chief of the Border Patrol develop appropriate metrics

and use them to make resource allocation decisions.

What steps will you take, if confirmed, to comply with GAO’s recommendation and to develop

performance metrics to evaluate the effectiveness of the physical wall that President Trump has

ordered?

ANSWER: If confirmed, I will work to ensure we have appropriate metrics in place to make

effective and appropriate resource allocation decisions. The aforementioned CGAP is intended

to identify gaps and other trends between the ports of entry. Once the gaps have been identified,

analyzed and prioritized, USBP views these gaps through the lens of available resources

including personnel, persistent surveillance, and impedance & denial (i.e., wall) – to address

those threats. The time to procure and available funding shape the immediate response, while we

address the long-term strategic needs. We already use metrics like the Interdiction Effectiveness

Rate2 and State of the Border risk analysis to guide and shape the balancing of resources to meet

the actions of the extremely nimble transnational criminal organizations. “Operational Control”

of the border, as directed by both the Secure Fence Act of 2006 (8 U.S.C. 1701) and Executive

Order 13767 (Sec. 4)3, is an additional metric that is used to guide our prioritized investment.

When balancing competing interests, DHS and CBP will use these and other specific

methodologies to identify and validate border control initiatives and investments.

Among other benefits, physical barriers contribute to USBP increasing certainty of arrest of

anyone crossing the border illegally. In defining illegal immigration as the threat for the

purposes of this question, we know that the threat migrates, generally seeking the path of least

resistance for entering our country illegally. Maintaining a high certainty of arrest between the

POEs depends upon USBP’s ability to accomplish mission essential tasks with the USBP having

the appropriate capabilities to gain, maintain, and expand operational control of the border.

Border wall will provide an important capability to impede or deny illegal crossings in those

areas where it is applied, as demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but

it is not effective alone, and is not an appropriate solution for every area of the border. Where it

is applied, border wall must be supported by the ability to detect activity through advanced

surveillance technology, and the ability to respond effectively with mobile, trained personnel.

2 Interdiction Effectiveness Rate (IER) is the percent of detected illegal entrants who were apprehended or turned

back after illegally entering the U.S. between Southwest border ports of entry. IERs are calculated by taking the

sum of apprehensions and turnbacks, and dividing by the sum of apprehensions, turnbacks, and gotaways. 3 The Secure Fence Act and the Executive Order both define “operational control” as the “Prevention of all unlawful

entries into the United States.”

In this way, the most effective means of achieving operational control of the border does not rely

on any single capability, piece of technology, or infrastructure. It is a mixture of all of those

things, executed by a properly trained and properly equipped mission ready workforce.

Question 50: A September 2017 report by the Office of Immigration Statistics estimates

successful illegal border entries fell from 1.8 million in 2000 to 170,000 in 2016 – a 91%

decline. The report found that “the southwest land border is more difficult to illegally cross

today than ever before.”

What are the main factors, in your view, that are driving the sizable decrease in border

apprehensions and estimated illegal entries over the past 17 years?

ANSWER: The most critical factors driving the sizeable decrease in apprehensions of illegal

crossings, and related successful entries between ports of entry, on the Southwest Border have

been the consistent investment over four Administrations to increase the capability of the USBP

to secure the border. These investments have been supported by sophisticated strategies and

operational innovations. The foundation for the positive trends cited in the question was the

forward deployment approach first utilized in 1993. Additionally, beginning in the early 2000s,

the steady increases of Border Patrol Agents, tactical infrastructure, access and border roads,

vehicles and air assets, situational awareness technology, and geospatial intelligence, increased

interdictions at the border, and community and international liaisons have attributed to the

decrease leading up to this point. These strategies have assisted the USBP in applying an

enhanced deployment posture at the border. These investments have been supported and

enhanced by development of a comprehensive consequence delivery system to increase

deterrence for those crossing our border illegally. The results have been higher rates of

interdiction effectiveness, increased costs for crossing the border illegally, and reduced

recidivism. The effectiveness of these efforts depend on CBP’s partnership with ICE which has

increased its capacity to detain and remove.

Question 51: Do you believe the southern border wall that President Trump has ordered is

necessary given the sharp decline in border apprehensions and estimated illegal entries?









the border. It is most effective where there are populated areas near the line on the U.S. side of

the border, where illegal crossers can vanish within residential and commercial areas.

Where it is applied, border wall must be supported by the ability to detect activity through

advanced surveillance technology, and the ability to respond effectively with mobile, trained

personnel. In this way, the most effective means of achieving operational control of the border

does not rely on any single capability, piece of technology, or infrastructure. It is a mixture of all

of those things, executed by a properly trained and properly equipped mission ready workforce.

Question 52: Given the Office of Immigrations Statistics’ assessment, do you agree with the

President’s assessment that people are “pouring across the border”?

ANSWER: The significant improvements recognized in the recent Office of Immigration

Statistics report are promising, and reflect the benefits of sustained investment in border security

capabilities based on operational requirements, combined with the effective operational

strategies applied by the US Border Patrol, along with improvements in enforcement policies and

consequence delivery. Despite these improvements, we continue to see over 25,000

apprehensions of illegal crossings per month between ports of entry, a number that has been

growing monthly, as well as increasing amounts of hard narcotics seizures. These threats—over

830 people a day—include previously deported criminals, hardened smugglers employed by

ruthless cartels, and other potential security risks. It remains CBP’s responsibility to effectively

interdict and deter these crossings, in concert with immigration enforcement partners and

supported by appropriations and authorities from Congress as we strive toward operational

control, the effective deterrence or interdiction of all illegal crossings.

Question 53a: A report published earlier this year by researchers with the Center for Migration

Studies concluded that two-thirds of the undocumented immigrants who arrived in the United

States in 2014 did not illegally cross a border. Rather, they were admitted on non-immigrant

visas and then overstayed their period of admission or otherwise violated the terms of their visas.

Would the physical wall that President Trump has ordered decrease the number of immigrants

who enter the country illegally but then overstay a visa?

ANSWER: Border wall is a key capability to provide impedance and denial between ports of

entry. While it does not directly respond to the challenge of those who enter our country legally

on visas or under the visa waiver program and then overstay, it hinders, if not outright impedes

an option for illegal entry where applied.

To address the challenge of overstays, if confirmed, I am committed to working with my

colleagues in U.S. Immigration and Customs Enforcement, U.S. Citizenship and Immigration

Services, the Department of State, and across the interagency to continue enhancing our

enforcement efforts. Over the last three years, CBP has made great strides in the ability to

identify overstays by visa category and country of origin, as now reported annually to Congress.

CBP has a real-time referral process to ICE for overstays, based on a prioritized framework. We

are also making significant strides toward implementation of biometric exit as required by

statute. If confirmed, I would continue to direct efforts to pursue implementation of the systems

and programs designed to address overstays as required by statute and executive order.

Question 53b: Why or why not?

ANSWER: As noted above, while the physical border wall is not a capability that directly

applies to overstays, they are related. While a border wall is a key security capability, it is not an

all-encompassing security solution that should be pursued alone. Instead, securing the border

between ports of entry requires an integrated approach including infrastructure such as border

wall and road access, surveillance technology, response capability and personnel. As the

question suggests, the ports of entry and our immigration benefit programs must also maintain

strong security postures and capabilities based on enhanced technology, systems, and

interagency processes. Both the Congress and the President have given specific guidance to

enhance security at ports of entry, including implementation of biometric exit, and to improve

the vetting of foreign nationals seeking to travel to the United States. If confirmed, I would

remain committed to pursuing border security through balanced investments, enhanced

programs, improved operations, and innovative partnerships at ports of entry as well as between.

Question 54: If confirmed, what resources do you plan to commit and what initiatives do you

plan to undertake to address the issue of visa overstays?

ANSWER: If confirmed, I would continue to support the expansion of existing efforts, as well

as introduction of implementation of enhanced technology, programs, and operations aimed at

reducing visa overstays. Today, regardless of whether a visitor is traveling via the visa waiver

program (VWP) or under a visa, for almost all visa categories, overstays are automatically

identified the day their period of admission expires if there is no indication of the traveler having

departed within the timeframe established on their admission to the U.S. These figures are

generated using CBP’s Arrival and Departure Information System using travel data from CBP

records and commercial carrier manifests. This data is correlated against other DHS systems to

eliminate individuals who have received extensions or adjusted status and remain lawfully in the

US. The overstay lists are run through CBP’s Automated Targeting System which applies ICE-

defined criteria to prioritize the records. This information is then provided daily to ICE for

appropriate action.

In addition to providing overstay information to ICE for action, CBP is expanding its review of

visa overstays for those cases where the individual has since departed the U.S. CBP currently

reviews select visa overstays and as appropriate places 3- or 10-year travel bans on their ability

to re-enter the U.S. System improvements and capacity enhancements are underway to expand

the classes and numbers of visa overstays undergoing this review.

CBP is also taking steps to improve travelers’ awareness of their admission status. In May 2017,

CBP launched a new online capability for VWP travelers to look up their compliance with their

current admission. A simple button on a CBP webpage that says, “How much longer may I

remain in the US?” CBP has started sending email notifications to VWP overstays to advise

them they have exceeded their authorized period of admission and their permission to utilize the

Visa Waiver Program is no longer valid. This program is being expanded to notify visa holders

as well, prior to their term of admission expiring it is nearing their time to depart. Ten days prior

to becoming an overstay, if a traveler is still in the U.S. they will be notified by email and

referred to a new online capability for details on their expected departure date. This program is

intended to support visa and VWP travelers alike.

Additional initiatives addressing overstays include the sharing of relevant overstay details with

systems used by other DHS components, as well as other government agencies such as the

Department of State, and used by them in the performance of their respective missions. For

example, systems are accessed at consular offices when individuals apply for a visa (or

subsequent visas), and lookouts placed within these databases indicate status of current or

historical visas as it pertains to the traveler’s compliance with the length of time associated with

the terms of any previous admissions. Furthermore, select overstay information is made

available to requesting Department of State consular offices for all travelers originating from a

particular region of interest to individual consular posts.”

Further, CBP is working towards full implementation of biometric exit in the air environment

within the next 4 years. CBP has deployed biometric exit technical demonstrations at one

departure gate to the following airports: Hartsfield-Jackson Atlanta International Airport

(Atlanta), Washington Dulles International Airport, Houston George Bush Intercontinental

Airport, Chicago O’Hare International Airport, Las Vegas McCarran International Airport,

Houston William P. Hobby Airport, and John F. Kennedy International Airport (JFK).

Coordination and partnership with CBP stakeholders including airlines and airports is critical to

the success of deployment of biometric exit in the air environment.

CBP has also launched a partnership with the Transportation Security Administration at JFK to

test facial biometric matching to determine how CBP’s facial recognition biometric exit might be

leveraged for checkpoint operations. Beginning in early 2018, CBP is working to to fully scale

out air biometric exit and will spend 2018 working with stakeholders to get commitment to

deploy biometric exit technology.

Question 55a: The U.S.-Canadian border stands as the longest undefended border in the world,

covering nearly 4,000 miles of land and water.

How do you plan to address the vulnerabilities on the northern border?

ANSWER: CBP works closely with DHS to help ensure the Department is maximizing the

benefits of its coordination efforts with northern border partners through interagency forums,

international agreements, and the resource planning process. CBP had representation on the

DHS-led northern border security threat assessment integrated product team that is intended to

inform subsequent strategy.

Based on the findings of the DHS Northern Border Threat Analysis, former Secretary Kelly

recognized the need to update the Northern Border Strategy and directed its revision be complete

by January 5, 2018. CBP has continued to work with DHS to inform and develop resource

planning and will implement these policies and plans to identify, assess, and integrate available

partner resources at the northern border. The updated Strategy should be based on an

intelligence-driven threat assessment of the Northern Border (as articulated in the Northern

Border Threat Analysis). That analysis points to our need to investigate, interdict, disrupt, and

dismantle terrorist, transnational, and other criminal organizations that may utilize the Northern

Border to harm the United States.

Question 55b: How will your approach differ from that used on the southwest border?

ANSWER: The revised Northern Border Strategy and its associated implementation plan will

serve as key management tools and should recognize the unique nature and challenges of the

Northern Border, including its diverse geography, remote expanses, high volume of cross-border

trade and travel, and our long history of social, cultural, and economic ties with Canada. This

context will inform appropriate border security solutions. The Strategy should also support

enhanced domain and situational awareness, intelligence, and information sharing. Whether

concerning terrorism, drug trafficking, human trafficking, human smuggling, or other illicit

transnational threats, information sharing and data integration are critical to our ability to secure

the Northern Border.

Each type of terrain presents its own detection and interdiction challenges, inhibiting the

utilization of a single set of security measures along the full length of the border. In order to

address the unique northern border terrain, from sparsely populated open plains and rugged

mountains, to major metropolitan centers and vast lakes heavily utilized for recreational

activities, CBP’s approach focuses on:

Enhance cross-border land, air, and maritime domain awareness and improve intelligence

and information sharing. Network current and future persistent wide area surveillance

systems with sensors deployed on aircraft, vessels, and the AMOC to ensure they share

the same operational picture.

CBP actively participates in and promotes integrated operations with Canadian, federal,

state, local, and tribal partners resulting in the identification, interdiction, investigation,

and disruption of terrorist actions and illicit cross-border activities.

o Cooperate with Canadian counterparts at the port level, such as the Integrated

Border Enforcement Teams (IBET) and the Cross Border Law Enforcement

Advisory Committee, which allow flexibility and unity of effort in a resource-

constrained environment.

o Enhance participation on task forces and intelligence groups by maintaining

agency participation in the Northern Border Coordination Center, Drug

Enforcement Agency Task Forces, IBET, and BEST programs.

Intelligence, risk assessments, and capability gap assessments assist CBP decision makers

in optimizing and appropriately prioritizing the mix of technology, equipment, and

personnel utilized at various points along the northern border.

In order to continue encouraging the use of the Northern Border as an avenue for efficient

and lawful trade, finance, immigration, and travel, CBP continues to promote public and

private sector engagement with domestic and international partners and stakeholders.

Harmonize trade and travel facilitation and security requirements with Canada and pursue

solutions for addressing policy differences with impacts on trade and travel security.

Increase public and private sector participation in trusted traveler and trusted traders

programs.

Question 55c: Do you believe that CBP has prioritized adequate resources for the northern

border?

ANSWER: CBP maintains robust capabilities on the Northern Border consistent with the

considerable amount of legitimate cross-border trade and travel, and current relative levels of

illegal cross border activity, threats, and trends. CBP strives to maximize the benefits of its

coordination efforts with northern border partners, in particular the Government of Canada and

in particular Canada Border Services Agency (CBSA) through interagency forums, international

agreements, and resource planning processes. The revised Northern Border Strategy and its

associated implementation plan will serve as key management tools that will allow CBP to align

programs, assess capability gaps, and fill those gaps in a responsible, cost-effective manner.

Specific to CBP with respect to trade facilitation, economic growth, and jobs, CBP has worked to

achieve increased harmonized benefits to NEXUS members, enhanced facilities to support

trusted trader and traveler programs, implementation of additional pre-inspection and pre-

clearance initiatives, facilitated cross-border business, the provision of a single window (ACE)

through which importers can electronically submit all information to comply with customs and

other participating government agency regulations, and coordination of border infrastructure

investment and upgraded physical infrastructure at key border crossings, among other initiatives.

Question 56: In recent years, there has been a migration surge from the Northern Triangle of

Central America – El Salvador, Guatemala and Honduras – to the United States, particularly by

unaccompanied minors and parents with young children.

What role have violence and economic conditions in the region played in this migration?

ANSWER: CBP’s experience is that both push and pull factors both play a role in contributing

to migration. While violence and weak economies in the Northern Triangle are among the

primary push factors that drive citizens, economic opportunity and inconsistency of application

of U.S. immigration law have been significant pull factors. If confirmed, I am committed to

working across the interagency to address both the push and pull factors leading to migration

from the Northern Triangle.

Question 57a: A few months ago, Senators Tester, Heitkamp, and I wrote you a letter about

Border Patrol radio failures. The letter discussed severe shortfalls in secure, reliable

communications systems along the Southern and Northern borders that have been brought to our

attention by the National Border Patrol Council and individual Border Patrol agents. We have

heard reports that the radios many agents use can’t talk with state and local law enforcement,

and, in remote areas of the border, the radios often simply don’t work. In some cases, agents

have had to rely on unencrypted personal cell phones to speak to each other. This is a clear

threat to agent safety and border security.

Will you commit to resolving this problem within 90 days of your confirmation?

ANSWER: If confirmed, I commit to the pursuit and attainment of secure and reliable

communications by leveraging traditional land mobile radio and innovative technology such as

Long-Term Evolution (LTE). It is important to note, however, that remedying all northern,

southern and coastal communications and interoperability with acceptable solutions is not

attainable in 90 days. For context, CBP environments and network infrastructure vary across the

enterprise. The state and local law enforcement agencies our Sectors/Branches/Field Offices

need to interoperate with vary across the nation. Acquiring the necessary real estate, site

surveys, environmental clearances, equipment, and supplies for reliable communications towers

and networks can’t be done adequately in that timeframe in remote and rural areas. That said, I

commit to working on all of these concerns through 90 days and beyond until we establish a

communications network that our agents and officers can continue to rely on and safely perform

their duties during daylight, through the hours of darkness, in urban areas, and through the most

remote locations along our borders.

Toward that end, CBP is developing a stop gap measure through the use of alternate technologies

such as satellite-based, handheld/mobile units in field locations where no Land Mobile Radio

(LMR) and/or cellular coverage exists. CBP actively uses satellite-based handheld radios as a

stopgap measure in high mission tempo areas where LMR/LTE capabilities are non-

existent. CBP satellite radios are currently supported under a Defense Information Systems

Agency (DISA) contract expires FY 2018. DISA contract will have to be renegotiated in

FY19. Additionally, CBP is working with the Department of Homeland Security (DHS) to

construct future tactical communications architecture to standardize technology, security, and

leverage or consolidate infrastructure components. CBP regularly coordinates with other DHS

agencies, such as Science & Technology (S&T), for future interoperability and training

requirements. CBP TALMEC is actively coordinating with FirstNet to leverage their planned

deployment of FirstNet sites in locations were CBP has active communications gaps.

Question 57b: What specifically will you do to resolve this problem?

ANSWER: CBP continues to work diligently towards mitigating any shortfalls in secure and

interoperable radio communications. In September 2016, the former CBP Commissioner, at my

recommendation along with the Agency Leadership Council, directed the establishment of the

Tactical Air, Land & Marine Enterprise Communications (TALMEC) group to act as the single

and authoritative voice for all CBP tactical communications representing its stakeholders which

include AMO, OFO, and USBP. As such, CBP is committed to leveraging this group in the

pursuit and attainment of secure and reliable communications recognizing there are various

coverage and interoperability gaps across the CBP operational environments. USBP leads CBP-

wide planning, budgeting, coordination, and oversight for all operational components to

harmonize requirements across the tactical communications portfolio to achieve maximum

interoperability and functionality in the most cost effective manner possible. The TALMEC

mandate is to be prioritized in direct relation to strategic goals, risk, and threat

assessments. CBP environments and network infrastructure vary across the enterprise. This

includes interoperability with federal, state, local, and tribal civil (F/S/L/T) authorities as well as

cross border communications with Canada and Mexico. As coverage gaps and/or

interoperability gaps are identified, CBP TALMEC will initiate engineering studies and

coordinate with other CBP programs and other F/S/L/T agencies to consolidate or leverage

existing infrastructure where available. With the recent procurement of dual band and multi-

band radios, CBP radios are being distributed certified to operate on state and local law

enforcement radio networks strengthening interoperability. The added dual and multi-band

frequency allows Sectors/Field Offices/Branches to work with the corresponding state and local

law enforcement entities on agreements to leverage a state or local radio network to further

mitigate CBPs LMR coverage gaps. Additionally, efforts to expand coverage and mitigate

existing communications gaps along the northern and southern border are underway in Laredo,

TX, Ajo, AZ, Alamogordo, NM, Indio, CA, Malta, MT, Havre, MT, Plentywood, MT and West

Palm Beach, FL.

Question 59a: President Trump has stated that “there’s no better place for solar than the Mexico

border – the southern border. And there is a very good chance we can do a solar wall, which

would actually look good. But there is a very good chance we could do a solar wall….we are

seriously looking at a solar wall.”

Does the administration currently have plans to build a solar wall?

ANSWER: CBP is moving forward as appropriate in the President’s executive order to

“construct a physical wall” where appropriate to enhance security along the U.S. border with

Mexico. Border wall system designs standards are developed for specific segments of border on

the basis on operational requirements and operational and engineering feasibility. To date, CBP

does not have a design standard that incorporates solar panels, although it remains an option for

future specifications, including to power integrated surveillance technology.

Question 59b: If so, please describe the current status of that project.

ANSWER: As noted above, to date, CBP does not have a design standard that incorporates solar

panels.

Question 60a: President Trump has repeatedly stated that Mexico will pay for the border wall.

On June 16, 2015, the day he launched his presidential campaign, Donald Trump declared, “I

will build a great, great wall on our southern border, and I will make Mexico pay for that wall.

Mark my words.” He repeated the claim – and made similar statements – again and again

throughout his campaign. During his campaign, Trump engaged in call-and-response chants

with his supporters. “Who’s going to pay for the wall?” he asked. “Mexico!” they yelled.

“Who’s going to pay for the wall?” “Mexico!”

To date, has the government of Mexico provided the United States government with any

payments to build the proposed southern border wall?

ANSWER: I am not aware of any payments provided by the Government of Mexico in support

of the proposed border wall along the southern border.

Question 60b: If so, please indicate how much the Mexican government has paid.

ANSWER: I am not aware of any payments provided by the Government of Mexico in support

of the proposed border wall along the southern border.

Question 61a: Has the Mexican government indicated that it will provide the United States

government with any payments to build to proposed southern border wall?

ANSWER: I am not aware of any payments that the Government of Mexico has agreed to make

to construct the proposed southern border wall.

Question 61b: If so, please indicate when the Mexican government will provide such payments.

ANSWER: I am not aware of any payments that the Government of Mexico has agreed to make

to construct the proposed southern border wall.

Question 62a: Specifications for the wall President Trump has ordered have varied over the

course of his campaign and since he was elected. In 2015, he suggested the wall would span

almost the entire length of the nearly 2,000-mile southwest border. He later refined that

suggestion, stating that a wall from 700 to 900 miles would be sufficient. More than half of the

U.S.-Mexico border features natural barriers, such as mountains and the Colorado and Rio

Grande rivers. President Trump has said the wall will be built from precast concrete and steel.

In February 2016, he said the wall will stand 35 to 40 feet tall. At another point in the

campaign, he said it could reach 50 feet. Asked at the final Republican presidential debate

about former Mexican President Vicente Fox’s denouncement of the wall, Trump said, “The wall

just got 10 feet taller.” According to one report, the wall could reach as high as 80 feet.

Do you support building a wall 50 feet high?

ANSWER: To explore additional design options for border wall, CBP issued two Requests for

Proposals to Industry, one for concrete wall solutions and a second for alternative materials.

Prototypes construction will inform expansion of the border wall toolkit and may influence

designs for future deployment.

The prototypes were recently completed and testing and evaluation will begin in late November

2017. The results of the test and evaluation will be used to determine if any prototype design or

attributes of any design merit inclusion in the border wall tool kit for possible future

construction. CBP will be testing a variety of factors. The two most significant for USBP are

how easy it is to climb and how readily it can be breeched using hand held power tools.

Depending on the environment, in CBP’s experience, walls of varying heights can be effective.

We currently have infrastructure deployed at varying heights up to 18 feet.

Question 62b: Do you support building a wall along the entire southern border?

ANSWER: As both the President and then-Secretary Kelly have stated, the Administration does

not envision a wall across the entirety of the U.S. Southern Border. CBP is currently developing

a comprehensive assessment of potential requirements for border wall as part of the Border

Security Improvement Plan required by the FY17 appropriations bill. This plan will include

requirements developed by USBP for prioritized impedance and denial capability deployment

that will provide the greatest benefits to border and national security. That said, the Southwest

border is a dynamic environment and each segment of border requires a tailored solution.

Question 63: President Trump stated that his administration has stopped illegal border crossings

by at least 78%.

What percentage of illegal border crossings have stopped under his Administration?

ANSWER: While CBP is still finalizing FY 2017 year-end numbers for apprehensions and

interdiction effectiveness rates, it looks like apprehensions and illegal crossings will be at their

lowest levels in 45 years. The first four months of the President’s term saw a drop of 51 percent

in apprehensions.

Question 64a: While Acting Commissioner, did you ever inform the President, the DHS

Secretary or the Acting Secretary that a public statement that the President made was inaccurate?

ANSWER: I do not believe I have informed the President, the former DHS Secretary or the

current Acting Secretary of any public statements from the President that I believed were

inaccurate.

Question 64b: Which one(s)?

ANSWER: N/A.

Question 64c: If not, why not?

ANSWER: N/A.

Question 65: In March 2016 the CBP Integrity Advisory Panel (IAP), a panel established by the

Homeland Security Advisory Council (HSAC) and composed by a group of law enforcement

experts, presented a report to the HSAC, which was adopted unanimously. In this report, the

IAP identified that the rapid growth of CBP without commensurate focus on accountability and

disciplinary mechanisms has led to serious criminal and disciplinary problems within the agency

and that CBP, the largest law-enforcement agency in the nation, is “vulnerable to a corruption

scandal that could potentially threaten the security of our nation” and that “[t]he CBP discipline

system is broken.”

How do you plan to address integrity concerns and strengthen accountability and transparency at

CBP?

ANSWER: CBP learned important lessons from previous times of growth and much has

improved in the past decade. CBP recognizes that we must work to identify and mitigate

integrity concerns throughout the lifecycle of an employee not just at any one point--during the

hiring process, continuously throughout employment to ensure continued suitability/eligibility,

and with precision to investigate allegations of misconduct or corruption. Building on this, CBP

must hold employees accountable and be transparent with the public when lapses occur.

CBP has worked internally to increase communication throughout all areas of the hiring process

(recruiting, testing, security, on-boarding, etc.). CBP has added additional security items to the

process (new automated vetting system, polygraph examination, etc.) and leveraging technology

has allowed for greater information sharing across the government during the background

investigation process. CBP continues to conduct pre-employment polygraph examinations and

background investigations to applicants for law enforcement positions. Effective July 1, 2017,

OPR implemented the National Security Adjudicative Guidelines on the adjudication of all initial

background investigations for CBP applicants, appointees, and contractors and periodic

reinvestigations of current employees in National Security designated positions and/or

requiring access to classified information. The updated guidelines establish a single common set

of adjudicative criteria for all positions which require an initial or continued eligibility to

classified information (security clearance) or eligibility to hold a sensitive position. Application

of these factors will facilitate a more thorough assessment of an individual’s reliability,

trustworthiness, and loyalty to the United States, particularly as it applies to national security.

This implementation will impact all applicants and appointees to sensitive positions within CBP,

as well as all current employees encumbering sensitive employees, regardless of whether the

position requires access to classified information. Employees in these positions must

maintain eligibility for a sensitive position as a condition of employment. This includes all CBP

law enforcement positions and any other position designated as sensitive (e.g., Non-Critical

Sensitive, Critical-Sensitive, and Special-Sensitive). Additionally, employees in

sensitive positions will be subject to continuous evaluation (CE). CE utilizes a set of automated

records checks and business rules to assist in the ongoing assessment of an individual’s

continued eligibility.

OPR and component offices regularly provide integrity awareness training at briefings and in

musters in Washington, DC, in the field, at managerial training, and new employee

orientation. In these sessions, the Standards of Conduct are reviewed and employees are

reminded of their responsibility to report misconduct. Leadership sessions focus on how CBP

supervisors and managers must set the expectations for conduct and hold employees accountable

for violations. From a proactive standpoint, OPR continues to study known cases of corruption

and analyzes trends in off-duty misconduct to inform detection of potential misconduct and

corruption and to develop lessons learned for integrity musters and messaging. OPR raises

awareness of corruption through its Trust Betrayed web page featuring instances in which

employees were convicted of engaging in criminal activity that involved the misuse of official

position. In these postings, OPR describes the activity and the consequences as a means to deter

future cases and let employees know that such actions will not be tolerated.

As a result of interactions with the IAP and in response to its recommendations, CBP has made

many improvements to the complaints and discipline process, increased transparency for use of

force incidents, and is expanding the cadre of criminal investigators. CBP has integrated Spanish

language capability in the Call Center and has implemented the Complaint Management System

in the field to better address complaints from the public. Internally, CBP is working to revise its

Table of Penalties and Offenses and is also reexamining the discipline review process to improve

accountability across the agency. With respect to increasing transparency, CBP has developed a

robust program to review use of force incidents and has implemented communication protocols

when incidents occur and is on track to publish its first annual report on OPR activities and key

statistics on misconduct and corruption. CBP continues to hire additional criminal investigators,

has developed new specialty operational units, and is working to enhance its case management

system.

Question 66a: Last spring, the CBP Integrity Advisory Panel found that the agency needs to

improve accountability among its law enforcement workforce. President Trump issued a

directive earlier this year directing to rapidly increase the number of Border Patrol agents by

5,000 agents, or roughly one quarter. Currently, CBP is unable to hire even the statutory floor of

21,370 agents. Rapid hiring as directed by the president will likely worsen the agency’s

accountability problem, particularly if hiring standards are lowered in order to achieve increases.

If confirmed, will you work to implement the recommendations made by the Integrity Panel,

including incorporating additional random polygraph examinations for current Border Patrol

agents?

ANSWER: CBP requested the Integrity Advisory Panel review and worked closely with the

Homeland Security Advisory Council to ensure a robust assessment by a distinguished panel.

CBP has aggressively pursued implementation of the Panel’s thoughtful recommendations and to

date has completed actions to address 42 out of 53 recommendations provided, including those

targeted to augment staffing, update policies, enhance training, and increase transparency. Six

recommendations remain in progress, while CBP is not currently pursuing the remaining five.

With regard to ensuring integrity for in-service personnel, CBP agents and officers undergo a 5-

year periodic reinvestigation at the Tier 5 level. CBP is also working to implement a robust

Continuous Evaluation (CE) program which will be anchored by automated vetting checks for

criminal activity, financial information, and other pertinent information. CBP has not ruled out

the prospect of reconsidering implementation of post-employment polygraph testing of

incumbent law enforcement personnel in the future.

Question 66b: If not, what other or additional accountability and integrity measures do you

intend to implement?


THE HONORABLE Thomas Carper







ANSWER: CBP’s approach to promoting workforce integrity is predicated on rigorous pre-

employment screening of job applicants to weed out unsuitable candidates, increased emphasis

on integrity awareness training, proactive anticorruption detection measures, and timely and

thorough investigations of criminal and serious misconduct allegations. CBP takes all

allegations of employee misconduct seriously. Under a uniform system, all allegations of

misconduct are recorded in a secure, centralized database. All allegations are then immediately

referred to the DHS Office of Inspector General for an investigative determination. Under DHS

policy, the OIG maintains the “right of first refusal” on all allegations involving DHS employees.

Allegations declined for investigation by the OIG are then returned to CBP OPR for appropriate

handling.

The Trade Facilitation and Trade Enforcement Act of 2015 (Pub.L.No. 114-125) authorized

CBP OPR to investigate criminal and administrative matters and misconduct by CBP employees

OPR investigators average over 20 years of criminal investigative experience and are equipped

with a full complement of investigative tools, including the latest in forensic and cyber

technology. OPR also utilizes the intelligence-gathering and manpower resources of the FBI

through its membership in 20 of the FBI’s 22 Border Corruption Task Forces and maintains

strong, collaborative working relationships with the DEA, ICE HSI, and other federal and local

authorities. OPR also leverages its vast array of data collection resources by deploying full-time

analysts to proactively identify suspicious or anomalous activity that could be indicative of

corruption or serious misconduct. After OPR completes its criminal or administrative

investigation, the Office of Human Resources Management and the Office of Chief Counsel

work collaboratively with OPR and management to propose and impose discipline when

appropriate. OPR continues to study known cases of corruption to inform proactive detection of

potential misconduct and corruption.

CBP is also working to implement a robust Continuous Evaluation (CE) program which will be

anchored by automated vetting checks for criminal activity, financial information, and other

pertinent information.

Based on the CBP Integrity Advisory Panel (IAP) recommendations of the agency’s complaints

and discipline process CBP has made many improvements to the process. For instance, we have

increased transparency for use of force incidents, are moving forward with hiring additional

criminal investigators, making technical improvements to its case management system, reissued

the directive on reporting misconduct, and HRM is revising the Table of Penalties and Offenses

and the discipline review process.

In February 2015, CBP established a Use of Force Incident Team (UFIT) program and a Use of

Force Review Board (UFRB) process in an effort to increase transparency and accountability.

The UFIT and UFRB is a CBP-wide response plan to investigate, monitor, report, evaluate, and

review use of force incidents involving CBP officers and agents. With regards to use of force

incidents, the UFIT investigation results can provide recommendations concerning tactics,

training, equipment, and/or safety issues. The investigations can also identify potential

misconduct and administrative violations that may result in disciplinary or other corrective

actions taken against employees.

In 2015, in order to address the misconduct associated with domestic violence or alcohol related

driving offenses (DUI) promptly and consistently, USBP consulted with the Offices of Internal

Affairs, Chief Counsel, Human Resources Management, as well as gained the perspectives of

District Attorneys in California, Arizona, and Texas in order to standardize administrative

consequences for the entire USBP. The Standardized Post-Employee Arrest Requirements

(SPEAR) outlines a standardized process for identifying and taking appropriate administrative

action following the arrest of a USBP employee for domestic violence or DUI. It is designed to

ensure consistent management action post-arrest. Through the application of SPEAR and

consistent messaging through video and slides on the Information Display System about the

program, alcohol related driving offenses have decreased 14 percent from FY2016 to FY2017.

As with arrests of all CBP employees, arrests involving USBP employees decreased in FY 2017.

With 110 reported arrests, USBP decreased 19 percent overall and 8 percent in Domestic/Family

Misconduct arrests. USBP continues to implement its SPEAR program and actively runs musters

regarding drug and alcohol related misconduct.

Question 67a: CBP officers at our ports of entry facilitate the movement of legitimate trade to

the tune of several trillion dollars, and millions of travelers, across our borders each year. They

also provide front-line defense against the opioid epidemic that has devastated many in this

country, by detecting and interdicting dangerous and illegal drugs coming across our border. You

were instrumental in developing a workload staffing model to predict staffing and resource needs

within CBP. Has a new staffing plan been created since that time that indicates a need for 5,000

additional Border Patrol agents?

ANSWER: USBP continues to refine its staffing methodology to determine its requirements to

conduct border enforcement operations. USBP is currently working on the Personnel

Requirements Determination (PRD). This decision tool will support a staffing model with expert

field input and a combination of existing data and field input. Absent this decision tool and

corresponding staffing model, USBP utilized existing apprehension data and effectiveness ratios,

as well as hours spent patrolling the U.S. border. This information, combined with decision-

maker judgement and experience, allows for both quantitative and qualitative analysis to

ultimately inform the proposed increase for additional personnel. The PRD will answer: (1)

what conditions and workload are significantly related to current staffing levels; (2) what do

SMEs say are the current, minimal, optimal, and operational control levels for staffing and what

evidence exists to support these estimates; (3) what would be the optimal distribution of

additional BPAs across sectors and stations based on operational conditions; and (4) as

conditions and workload change, what are the effects on staffing requirements by sector, station,

and zone.

Question 67b: Is there a timeline to complete a new staffing plan?

ANSWER: To determine a comprehensive staffing plan we first must understand the

requirements of our leaders in the field. As we collect data for use in our decision support tool

known as the Personnel Requirements Documentation we are also developing a scalable

organizational structure that allows staffing based on available resources. The decision support

tool will reach “BETA” testing in July 2018 and is scheduled to be completed on or before

September 2019.

Question 67c: If so, would you commit to providing the results of that model to Congress?

ANSWER: Yes, I would provide the results of that model to Congress.

Question 67d: If confirmed, do you intend to work to ensure that staffing and resource

allocation decisions at CBP are based on risk, threat, and need?

ANSWER: Yes. If confirmed, I will work to ensure that threat, risk, and need are primary

considerations in staffing and resource decisions at CBP. As we continue to address the ever-

changing threats along the borders, I will ensure the resources allocations are based on a bona

fide operational need to uphold the laws of this nation and protect the United States and the

American people.

Question 67e: How does the current staffing model account for trends in apprehensions at the

border?

ANSWER: The current staffing model, as well as the future Personnel Requirements

Determination, relies on apprehension and other border census data as a key staffing requirement

driver. The number of apprehensions is a first order measure that drives several workload

variables, to include processing, temporary holding, and transportation requirements. Data on

traffic levels and trends, is combined with a sector by sector capabilities gap analysis that takes

into account the number of Agents needed to secure areas within a particular area of

responsibility. These totals can include the number of Agents required to mitigate cross-border

risks, such as: (1) Agents forward-deployed immediately at the border; (2) Agents to process and

care for those arrested; and (3) Agents who are responding to illicit cross-border traffic identified

by technology such as long-range cameras, mobile scopes, and aerostats, to name a few. As

additional technology is deployed with the appropriate impedance and denial infrastructure, field

leadership continues to evaluate the staffing needs based on the operational dynamics, threat, and

risk.

Question 68a: The Justice Department’s Office of Legal Counsel has published an internal

memo stating that the executive branch has no obligation to respond to requests for information

from individual members of Congress, including Ranking Members of committees. This

represents an effort to stonewall minority and other members of Congress as we perform

oversight of federal agencies. If confirmed, one of your central tasks will include facilitating

responses to Congressional requests for information. Do you commit to fully respond to requests

for information from members of congressional oversight committees, regardless of party?

ANSWER: Congressional committees play an important role in the oversight of federal agency

programs. I have a strong record of working with Members of Congress in a bipartisan,

bicameral nature to facilitate this important function. If confirmed, I will work with members of

committees to provide appropriate information, regardless of party.

Question 68b: Do you commit to providing prompt and meaningful responses to congressional

inquiries from any member of Congress?

ANSWER: CBP will make every effort to be responsive to congressional inquiries in a timely

manner.

Question 69a: The Administration again in late September issued an Executive Proclamation

implement a travel ban affecting eight countries, six of which are Muslim-majority. According to

the administration, this proclamation is based on findings from a “worldwide review” of foreign

countries’ security, information sharing, and other practices conducted by the Secretary of

Homeland Security. Parts of this report were shared with foreign governments. However,

administration officials have informed congressional staff that the DHS products cited in the

proclamation, and used to inform and develop the travel ban, will not be provided to Congress.

Federal courts have now blocked implementation of three separate versions of this ban, and it is

clearly appropriate that members of Congress have a chance to review these documents in order

to determine whether there is a threat basis for these travel bans. Please describe what role, if

any, CBP played in the worldwide review and in development of the proclamation, directly or

indirectly.

ANSWER: CBP provided limited support, as requested, to the DHS Office of Strategy, Policy,

and Plans who has the lead for the Section 2 Report and related efforts (which is cited in the

question as “worldwide review”), providing comments and information such as basic statistical

data, which may have been used in the worldwide review. CBP provided pre-decisional,

deliberative comments on the review and its findings in the clearance process. Questions related

to Section 2 and the worldwide analysis should be directed to the DHS Office of Strategy,

Policy, and Plans.

Question 69b: Will you commit to provide any documents CBP developed as part of the travel

ban review to Congress, within reason, and in a classified setting as appropriate?

ANSWER: I would defer to DHS who maintained lead for this assessment.

Question 70a: In January, former Secretary of Homeland Security General John F. Kelly stated

before the Senate Homeland Security and Governmental Affairs Committee that border security

starts 1,500 miles to the south, including in Central America—and that we must work with our

partners there to address some of the “push” factors that lead people there to undertake the

dangerous journey to our southern border. The president’s FY18 budget request included only

$460 million to address the root causes of migration from Central America, a nearly 30 percent

cut from the amount provided last year. Both the House and the Senate appropriations

committees have largely restored last year’s funding in their Fiscal Year 2018 marks. Please

describe your views on the importance of working to address the root causes of migration from

Central America as part of a complete border security strategy.

ANSWER: The “push” factors that drive migration from Central America to our southern

border include security and economic factors, both of which CBP can play a role in addressing. Regarding security, CBP efforts in the region focus on enhancing U.S. and local law

enforcement abilities to disrupt and interdict human trafficking and contraband

smuggling. Through partnerships with the Department of State and local agencies, CBP pursues

these initiatives through vetted local law enforcement units, Mobile Interdiction Teams (MIT),

and by providing advisory guidance, training, and best practices to law enforcement

personnel. The overarching goal is two-fold: one, improving the security situation in the region

to reduce threats to citizens and create a more conducive environment for economic growth; and

two, increasing awareness and information about migration and smuggling activities in the

region that may affect the United States.

In terms of economic conditions in the region, wait times for customs clearance can be long,

duties and fees applied can be perceived as arbitrary, risk management and targeting systems are

outdated or non-existent, and communication between agencies at POEs is often lackluster –

creating an inefficient environment for international trade and reduced customs revenues for

these countries. CBP aims to work with Central American governments to address these issues

as an important step to encourage investment, trade, and economic growth. CBP is working with

U.S. and Central American partners to share best practices to increase efficiency, predictability,

and transparency for trade at POEs in Central America.

Question 70b: Do you believe that funding to support the Alliance for Prosperity is important to

securing our southern border?

ANSWER: Yes, supporting the efforts of the Northern Triangle governments to enhance their

economic and security environment will serve to address the push factors that drive migration,

smuggling and illicit trade from the region to the U.S. The Alliance for Prosperity also shows a

commitment by the Northern Triangle countries themselves to address economic and security

challenges in the region. At the same time, we need to be addressing the pull factors with

consistent messaging and enforcement efforts.

Question 71: President Trump has issued an executive order calling for the construction of a

wall along the entire border between the US and Mexico. Every estimate agrees that such an

undertaking would cost several billion dollars. Additional wall construction could sever wildlife

habitat and irreparably damage numerous national parks, wildlife refuges, forests and wilderness

areas that are found along our border. The U.S. Fish and Wildlife Service estimates that at least

89 threatened and endangered species and 108 species of migratory birds could be affected by

additional border wall construction and accompanying activities, including some of the most

endangered creatures in the world such as the jaguar and ocelot. Wall construction could also

have severe negative consequences for important regional ecotourism economies. For example, a

wall through the Santa Ana National Wildlife Refuge, which is a premier destination for birders,

would cut the Refuge off from its visitor center. Should wall construction move forward, what

will you do to minimize and mitigate damage to wildlife and related ecotourism economies?

ANSWER: CBP is committed to environmental and cultural stewardship while performing our

core missions of border security and the facilitation of legitimate trade and travel. Additionally,

CBP works diligently to integrate responsible environmental practices – including incorporating

sustainable practices – into all aspects of our decision making and operations

For border infrastructure projects, CBP’s commitment to environmental stewardship manifests in

a number of different ways. Prior to any construction, CBP conducts natural and cultural

resource surveys and assesses potential impacts. As part of this assessment of potential impacts,

CBP regularly consults with other Federal, Tribal, state, and local agencies, as well as non-

governmental organizations (NGOs) to ensure protection of the nation’s natural and cultural

resources.

Further, CBP through its own experience and in working with resource agencies and other

stakeholders, has developed a number of environmental best management practices which are

implemented during project design and construction to reduce potential impacts. These best

managements practices, which are designed help CBP minimize or avoid potential impacts, have

been incorporated into contracts for current border infrastructure and CBP intends to include

them in future wall construction plans. And, where potential impacts cannot be minimized or

avoided, CBP, where practicable, plans and implements mitigation measures to offset impacts.

CBP has always regarded environmental stewardship as one of its top concerns not only during

construction projects but also during our day-to-day operations. Our agents and officers

frequently work out in the environment and understand the importance of protecting the

environment while protecting the border. CBP will strive to eliminate or minimize impacts to

the environment as a result of the implementation of border wall construction.

Question 72a: Is CBP currently conducting preparation or construction activities for wall or

physical barrier construction in the Santa Ana National Wildlife Refuge?

ANSWER: In the FY 2018 budget request, CBP identified 60 miles of border barrier systems in

the Rio Grande Valley (RGV) region of Texas, to include the area near the northern boundary of

the Santa Ana National Wildlife Refuge (NWR), as an operational requirement (approximately

three miles). Planning activities for those locations are underway and are funded by CBP’s FY

2017 reprogramming. These activities include geotechnical analysis (completed), border/levee

wall system design, and preliminary title research. These planning activities are not limited to the

operational requirements near the northern boundary of the NWR. CBP is also conducting these

activities for the additional miles in RGV.

Question 72b: Please describe what activities are underway, and the authority under which those

activities are taking place.

ANSWER: Planning activities for those locations are underway and are funded by CBP’s FY

2017 reprogramming. These activities include geotechnical analysis (completed), border/levee

wall system design, and preliminary title research. These planning activities are not limited to the

operational requirements near the northern boundary of the NWR. CBP is also conducting these

activities for the additional miles in RGV.

Question 73a: Please provide an update regarding a cost assessment for border wall

construction.

ANSWER: At this time, CBP cannot provide a total cost assessment for border wall

construction. CBP is currently developing a comprehensive assessment of potential

requirements for border wall as part of the Border Security Improvement Plan required by the

FY 2017 Omnibus. That said, the Southwest border is a dynamic environment and each mile of

border requires a tailored solution. Costs will vary depending on the type of barrier required by

the terrain, traffic, and threats, as well as specific construction and land acquisition requirements.

Question 73b: Has the cost assessment been completed?

ANSWER: At this time, CBP cannot provide a total cost assessment for border wall

construction. CBP is currently developing a comprehensive assessment of potential

requirements for border wall as part of the Border Security Improvement Plan required by the

FY 2017 Omnibus.

Question 74a: Press reports indicate that Border Patrol agents took a ten year old little girl with

cerebral palsy into physical custody after an emergency surgery on Tuesday, October 24. Press

reports indicate that the Border Patrol agents waited at the hospital to assume custody of the

child after her emergency surgery despite the fact that her biological parents are in the United

States, appear to be ready and willing to assume custody, and have not had their parental rights

terminated. The United States Supreme Court has consistently held that the relationship between

the parent and child is constitutionally protected.

Do you believe that immigrants, with or without legal status, have a constitutional right to their

child? If no, please state your legal reasoning.

ANSWER: Many press reports on this matter have been inaccurate. On October 24, 2017,

shortly after 3:00 a.m. Rosa Maria Hernandez (a juvenile) and her adult cousin, Aurora Cantu,

were encountered as passengers riding from Laredo, Texas to Driscoll Children’s Hospital in

Corpus Christi, Texas via a contracted private medical transport vehicle (4-door sedan) for a

scheduled gallbladder surgery. The vehicle was not an ambulance. All vehicles traveling

northbound on Highway 59 are required to stop at the Border Patrol checkpoint for an

immigration inspection of all occupants. An immigration inspection on the vehicle revealed the

juvenile was illegally in the United States. The two other occupants were determined to be

USCs. Agents subsequently determined that Rosa was an “unaccompanied alien child” (UAC),

since she was not with a parent or legal guardian. Upon this determination, Border Patrol agents

followed the law as well as all UAC established guidelines and policies in escorting the juvenile

to receive her medical care and then proper placement with U.S. Department of Health and

Human Services (HHS).

CBP takes its responsibility to protect children and ensure that they are not trafficked very

seriously. The government has a robust system in place that balances the needs to protect

children with the important interest of maintaining family unity. The William Wilberforce

Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA) provides certain

protections for children who, like this one, are encountered by CBP and do not have lawful

status. This child was not accompanied by her parents or a legal guardian when she was

encountered, nor did they arrive to take custody of the child. Accordingly, consistent with law

and policy, Border Patrol transferred her to the HHS Office of Refugee Resettlement for proper

care and placement.

Question 74b: Cite which specific statute permits CBP to assume custody of a child when the

child’s parents are ready, willing, and able to assume physical custody of the child?

ANSWER: Rosa Maria’s parents were not present or able to assume custody after surgery. As

the 10-year-old was not accompanied by a parent or legal guardian, and was not legally in the

United States, CBP is required by the William Wilberforce Trafficking Victims Protection

Reauthorization Act of 2008, to take the unaccompanied child (UAC) into custody.

Border Patrol agents allowed Rosa Maria to continue to the hospital so that she could receive her

scheduled medical care. The agents remained with the unaccompanied child as she was in their

custody and protection, and in the absence of a legal guardian, until such time as she could be

transferred to the U.S. Department of Health and Human Services (HHS) Office of Refugees and

Resettlement (ORR). This period of time presented an additional opportunity for a parent or

legal guardian to come forward to take custody of Rosa Maria; however, during the entire time

Rosa Maria was at the hospital, no parent or guardian contacted Border Patrol or came to the

hospital in a manner that would make him or her “available to provide care and physical

custody” of Rosa Maria. In this circumstance, Border Patrol had no choice but to continue to

designate Rosa Maria as a UAC.

The TVPRA requires CBP to transfer all UAC to the custody of HHS-ORR. The TVPRA leaves

no discretion for any federal agency to decline to turn over a UAC in its custody to ORR, or to

otherwise transfer custody of that UAC to any individual or entity other than ORR. Thus, once

CBP determined that Rosa Maria’s parents were not present and would not appear to take

custody of her, and therefore that she was a UAC, CBP was obligated by law to transfer her into

the custody of ORR.

Question 74c: Provide the legal rationale for how this case complies with the Flores Agreement

which favors release of the child and especially to the natural parents?

ANSWER: CBP takes its obligations to comply with the Flores Settlement Agreement

seriously. However, in the present case the TVPRA’s requirement that a child may only be

released by CBP to her parent or legal guardians governs.

As mentioned above, Rosa Maria’s parents were not present or able to assume custody at the

checkpoint or during Rosa Maria’s scheduled medical care at the hospital. As such, Rosa Maria

was designated a UAC. CBP was required by the William Wilberforce Trafficking Victims

Protection Reauthorization Act of 2008, to take the unaccompanied child into custody until such

time as she could be transferred to the Health and Human Services Office of Refugees and

Resettlement.

Question 75a: The Sensitive Locations policy as currently written on the DHS website,

indicates that staff must acquire approval prior to carrying out an enforcement action at a

sensitive location.

Did Border Patrol agents obtain permission to conduct enforcement actions with the ten year old

girl who has cerebral policy at the hospital after her emergency surgery?

ANSWER: Enforcement actions were not conducted at a sensitive location, which in this case

was Driscoll Children’s Hospital. The unaccompanied child was encountered and taken into

custody at an immigration checkpoint—a CBP operational location—and was already in Border

Patrol custody when she was escorted to the hospital so that she could receive her scheduled

medical care. Because no parent or guardian of Rosa Maria was present at either the checkpoint

or hospital, and no parent or guardian of Rosa Maria contacted Border Patrol during this time,

CBP reasonably determined that Rosa Maria was a UAC at the time she was encountered at the

checkpoint and remained a UAC while in Border Patrol custody at the hospital. As such, CBP

was obligated by law to place Rosa Maria into the care of the U.S. Department of Health and

Human Services Office of Refugee Resettlement after her medical procedure.

Question 75b: Do you believe that the detention and arrest of a ten year old child with cerebral

palsy at a hospital complies with the policy concerning sensitive locations? If yes, provide a

detailed description of your reasoning.

ANSWER: CBP routinely transports persons in its care or custody, including thousands of

persons a year rescued from the elements or smugglers, for medical evaluation and care at

hospitals and other medical facilities. These efforts to protect the health and safety of the

individuals transported to the hospital in CBP custody do not implicate the sensitive locations

policy in any way.

Again, enforcement actions were not conducted at a sensitive location, which in this case was

Driscoll Children’s Hospital. The unaccompanied child was encountered and taken into custody

at an immigration checkpoint—a CBP operational location—and was already in Border Patrol

custody when she was escorted to the hospital so that she could receive her scheduled medical

care. Because no parent or guardian of Rosa Maria was present at either the checkpoint or

hospital, and no parent or guardian of Rosa Maria contacted Border Patrol during this time, CBP

reasonably determined that Rosa Maria was a UAC at the time she was encountered at the




Question 76a: In January, the President issued an executive order mandating that CBP hire

5,000 additional Border Patrol agents, about a 25% increase over the current force, citing a need

for additional agents. CBP is currently unable to hire to, or retain, its statutorily required number

of 21,370 Border Patrol agents.

Given the use of current CBP agents to apprehend a minor following emergency surgery, please

summarize CBP’s policies regarding enforcement priorities.

ANSWER: CBP operations between ports of entry are focused on interdicting illegal border

crossings at or near the immediate border and on routes of egress into the United States. While

the U. S. Border Patrol (USBP) may arrest all individuals found to have entered the U.S. illegally

during border security operations, the vast majority of apprehensions involve recent border

entrants. Each person who is apprehended is subject to the Consequence Delivery System (CDS),

which ensures the most appropriate actions are applied to each case. CDS standardizes USBP’s

decision-making process specific to each apprehended subject by consistently and systematically

applying consequences and evaluating each consequence’s effectiveness and efficiency. CDS

measures the consequences applied to persons illegally entering the United States against defined

alien classifications. CDS includes the analysis of a variety of possible administrative, criminal,

and programmatic consequences and incorporates a number of pre-existing initiatives and

programs. CBP referrals for further immigration enforcement action are subject to prioritization

and adjudication by both U.S. Immigration and Customs Enforcement and the Executive Office

of Immigration Review.

Question 76b: Specifically, please describe how CBP assesses threat and risk in determining

whether to carry out enforcement action, and any other factors taken into account.

ANSWER: As discussed above, each person who is apprehended is subject to the Consequence

Delivery System, which ensures the most appropriate actions are applied to each case. CDS

standardizes USBP’s decision-making process specific to each apprehended subject by

consistently and systematically applying consequences and evaluating each consequence’s

effectiveness and efficiency. CDS measures the consequences applied to persons illegally

entering the US against defined alien classifications. CDS includes the analysis of a variety of

possible administrative, criminal, and programmatic consequences and incorporates a number of

pre-existing initiatives and programs. CBP referrals for further immigration enforcement action

are subject to prioritization and adjudication by both U.S. Immigration and Customs

Enforcement and the Executive Office of Immigration Review.


THE HONORABLE Ron Wyden







Question 77: Unlike sales at duty-free stores at U.S. airports, which are limited to personal use

quantities, sales at such stores at U.S. land ports of entry are unlimited. I understand that ICE and

CBP have found that sales of tobacco products at duty-free stores on the Southwest border have

resulted in diversion back into the U.S. as well as the smuggling of such products into Mexico,

some of which is linked to organized crime, including the use of these sales for money

laundering. These problems are exacerbated by the fact that there are no limits on the quantities

of such duty-free products that can be sold along the border.

If confirmed, would you support the imposition of personal use restrictions at duty-free stores at

ports of entry other than airports?

ANSWER: I am aware of this challenge, and would be happy to work with you, Senator

Wyden, and other members of the committee to address these concerns. As you note, the current

statute only provides for a personal quantity limit for airport duty free stores. Under my

oversight in the Office of Field Operations, we did conduct enforcement operations and share

information with Mexican authorities where appropriate on duty free purchases that seemed

designed to evade Mexican laws or perhaps be diverted back to the United States. Accordingly, I

am familiar with the issues and would support a review of potential solutions, such as a limit on

sales that would create barriers to these smuggling and money laundering efforts.

Question 78: On May 20, 2016, Senator Wyden sent then-Commissioner Kerlikowske a letter

regarding concerns about the increasing volumes of fentanyl and other illicitly-produced opioids

entering the United States. A recent Morbidity and Mortality report compiled by Centers for

Disease Control and Prevention researchers found sharp increases in fentanyl-related deaths, a

trend that press reports suggest continues to this day. Please update the agency’s response to

Senator Wyden’s May 2016 letter, including providing data current through September 30, 2017,

for all of the data-related requests.

Please provide up to date figures on the amount of illicit synthetically made opioids that CBP has

seized during Fiscal Year (FY) 2016. Which illicit synthetic opioids are most frequently seized?

ANSWER: The most frequently seized synthetic opioid is fentanyl. Overall CBP-OFO

Fentanyl seizures have increased by 159 percent when comparing FY 2016 to FY 2017. This

surge is driven by the 408 percent increase in fentanyl seizures in the Express Consignment, 180

percent increase in the Mail environment, and 126 percent in the Southwest-Land-Border.

Weigh (Kgs) Total Incidents Weigh (Kgs) Total Incidents

POV - Land 145.92 14 323.69 52 122%

Other - land 25.42 6 63.49 13 150%

Express Consignment 21.42 40 108.88 118 408%

Mail 15.33 51 42.93 227 180%

Air (Other) 0.15 5 0.38 2 153%

TOTAL 208.25 116 539.38 412 159%

OFO Fentanyl Seizures (Kgs) by Mode

Mode of TransportFY 2016 FY 2017

%Change (Kgs)

Please provide a geographic breakdown of:

a. The origin countries from which the seized synthetically made opioids were

shipped. Please include the total weight that was seized from each origin country;

TOP Countries FY 2016 (Kgs) FY 2017 (Kgs) Grand Total (Kgs)

MEXICO (Through the Border) 171.35 387.44 558.79

CHINA (Shipped From) 31.09 121.46 152.55

HONG KONG ( (Shipped From) 4.12 26.69 30.81

b. The destination state or district within the United States of the illicit synthetically

made opioids that were seized. Please include the weight that was seized for each

destination.

USA State Code FY 2016 (Kgs) FY 2017 (Kgs) Grand Total (Kgs)

CA 164.89 332.72 497.61

AZ 9.04 63.00 72.04

TN 12.88 47.16 60.04

OH 3.45 29.38 32.83

KY 0.22 29.70 29.92

NY 8.25 16.74 24.99

IL 2.78 15.19 17.97

FL 2.67 1.65 4.32

MA 3.76 3.76

TX 1.79 1.79

NJ 0.85 0.85

GA 0.62 0.62

OR 0.37 0.37

MI 0.25 0.25

IN 0.00 0.14 0.14

AK 0.06 0.06

MN 0.05 0.05

HI 0.01 0.01

Grand Total 208.25 539.38 747.63

These statistics are constantly evolving as lab results are confirmed and records reconciled.

Question 79a: On January 2, 2017, a multi-hour passport processing system outage led to long

delays for international passengers entering the United States. A recent Office of Inspector

General (OIG) report estimated the outage “affected approximately 119,774 international

travelers nationwide” including “[a]bout 13,000 passengers who arrived at Miami International

Airport” where long lines “created hazards and security concerns … including difficulties with

crowd control, temperature, health emergencies, and officer and public safety.” Miami airport

officials alone estimated that “258 CBPOs worked 762 overtime hours, resulting in more than

$58,000 overtime pay.” Media reports suggest that long delays at other airports around the

country may have led to similar situations. Given that U.S. airports handle more than 300,000

incoming international air passengers every day, such outages are extremely troubling and must

be addressed.

Please describe the issues that led to the nationwide outage in January.

ANSWER: The root cause was determined to be a culmination of workload and background

processes competing for system resources. The competing processes included the high

transaction volume due to holiday traffic, application code with an inefficient way of accessing

the database, storage limitations, and a resource intensive background ‘clean up’ process. Our

Office of Information Technology has addressed the specific issues that led to the outage. CBP

has also committed to enhancing availability in our critical systems as well as improving the

availability and speed of our back up capabilities.

Question 79b: Please disclose any instances in which a similar issue has taken place.

ANSWER: There have been no recent instances in which a similar issue took place. As noted

above, on January 2, 2017, a unique combination of circumstances involving the culmination of

workload and background processes competing for system resources caused the outage.

Question 79c: Please describe the steps that Customs and Border Patrol has taken and

additional steps it plans to take to ensure such an outage does not occur again.

ANSWER: To ensure such an outage does not occur again, CBP has taken the following steps:

Implemented a programming change to address the error handling to include

defensive logic in the application code that will protect against the condition that

caused the problem.

Increased system resources (memory and computer processing) available for the

application.

Updated the background ‘clean up’ process to occur more frequently in shorter bursts;

minimizing the consumption of resources.

Increased sensitivity on monitoring alert settings to initiate a production support call

earlier.

Initiated improvements to backup capabilities.

Question 79d: Lastly, please describe the steps—either on their own or in conjunction with

other agencies—that CBP has taken to ensure the health and safety of passengers and employees

if such an outage takes place again.

ANSWER: OFO performs certain functions related to restricting, regulating and interdicting

cross-border flows of people and products. During the performance of a range of inspectional

activities, a priority is the safety and health of the American public, travelers and personnel. We

strive to make proactive and continuous improvements to enhance safety at our ports.

Particularly in airports, we work closely with our airport authority partners, whom we rely on for

certain services as we work in their facilities. OFO works with our stakeholders, offering the

opportunity to contribute and provide feedback in areas of services and participation in tabletop

exercises. At most major arrival airports, joint procedures have been developed and exercised

with terminal operators and carriers.

Question 79e: Please provide any after-action reports related to the January 2nd passport system

outage, either for specific ports of entry/airport, or for the agency as a whole.

ANSWER: Attached is the after-action report.

Question 80: I have described how I believe “digital is different.” Do you believe, as Chief

Justice Roberts has said in the Supreme Court case Riley, that “cell phones differ in both

quantitative and a qualitative sense from other objects?”

ANSWER: CBP understands that electronic devices often contain personal information and, for

that reason, has taken steps for many years to ensure that border searches of electronic devices

are conducted in a judicious and transparent manner. As reflected in CBP’s governing policy

directive addressing this issue, which has been available to the public since 2009, CBP has

provided specific guidance to our officers about conducting these searches in addition to

supporting robust oversight and monitoring to ensure that CBP continues to respect the privacy

of international travelers while performing its vital law enforcement mission. Furthermore, CBP

takes steps to ensure that it only searches information residing on the device itself, and our

agency has applied policy limitations that are above and beyond those which are constitutionally

required. Border searches of electronic devices affect less than one-hundredth of one percent of

travelers entering the United States, a significant majority of which do not concern U.S. citizens.

Additionally, we carefully monitor the evolving jurisprudence around digital media, and I am

committed to ensuring that strong policies and transparent practices governing our examinations

of these devices are in place and improved iteratively.

Question 81: As you know, the Protecting Data at the Border Act I have introduced with

Senator Paul requires a warrant to search a device at the border. Understanding that your agency

can move far more quickly than Congress, will you revise your internal policies to require a level

of suspicion nationwide before requesting or seeking assistance to search a device?

ANSWER: CBP is aware of the proposed Protecting Data at the Border Act and respects the

rights of our citizens. The concerns at issue are why we conduct border searches of electronic

devices in a limited, judicious manner and ensure searches of electronic devices adhere to the

strict and clearly defined guidelines set forth in CBP Directive 3340-049. That said, searches of

electronic devices at the border routinely result in significant enforcement actions despite the

rarity of their use.

As an example of the care with which CBP applies this authority, when requesting subject matter

assistance in furtherance of a border search of electronic devices, CBP Directive 3340-049

authorizes CBP officers to transmit electronic devices or copies of information contained therein

to other federal agencies only when they have reasonable suspicion of activities in violation of

the laws enforced by CBP. Moving forward, and in recognition of the requirement described in

section 802(k) of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), which

requires CBP to review and update at least every three years its standard operating procedures

relating to searches of electronic devices at ports of entry, we are currently reviewing CBP

Directive 3340-049 and intend to revise and update it to reflect evolving operational practices on

this important and sensitive issue.

Question 82: The 9th Circuit has required reasonable suspicion for searches of devices at the

border. As such, people in Portland currently get greater protection than travelers flying into

New York or Chicago. Airports in the 9th Circuit are some of the busiest in the United States,

with tens of millions of international travelers entering the country through them each year. If

CBP has been able to protect our borders and, more broadly, U.S. national security, while

following a reasonable suspicion standard in the 9th Circuit, why could the agency not also adopt

the same standard elsewhere in the country?

ANSWER: CBP dutifully adheres to judicial rulings and will continue to carry out our mission

of protecting the homeland as permitted by law. CBP is responsible for ensuring the safety and

admissibility of the goods and people that enter the United States. Doing so in an increasingly

digital world depends on our ability to lawfully inspect goods—electronic or otherwise—

entering the United States. Moreover, under U.S. immigration law, applicants for admission bear

the burden of proof to establish that they are clearly eligible to enter the United States, and all

items entering the country are subject to inspection. In compliance with the requirements of the

Trade Facilitation and Trade Enforcement Act of 2015, CBP is actively engaged in reviewing its

governing policy on the border search of electronic devices, to include setting appropriate policy

limitations for these searches, particularly when forensic review is involved.

Question 83: When meeting with my staff, CBP personnel stated that the agency does

occasionally perform border searches of Americans’ electronic devices at the request of other

governmental agencies.

ANSWER: CBP has the authority to inspect and examine all individuals and merchandise

entering or departing the United States, including all types of personal property such as

electronic devices. See, e.g., 8 U.S.C. §§ 1225; 1357; 19 U.S.C. §§ 482; 507; 1461; 1496; 1581;

1582; 1589a; 1595a; see also 19 C.F.R. § 162.6, stating that “[a]ll persons, baggage, and

merchandise arriving in the Customs territory of the United States from places outside thereof

are liable to inspection and search by a Customs officer.” CBP exercises its border search

authority in accordance with its statutory and constitutional authority. More specifically,

pursuant to CBP Directive 3340-049, the use of other federal agency analytical resources, such

as translation, decryption, and subject matter expertise, may be needed to assist CBP in

reviewing the information contained in electronic devices or to determine the meaning, context,

or value of information contained in electronic devices. CBP’s Directive specifies how officers

may pursue seeking such assistance.

Question 84a: In each of the last five calendar years, how many searches of electronic devices

at the border did CBP perform at the request of another federal agency?

ANSWER: CBP does not have a tracking mechanism to account for electronic devices searched

at the border with the assistance of another federal agency. However, the total number of border

searches of electronic devices performed for the past five fiscal years are as follows: 5,085 for

FY 2012; 5,709 for FY 2013; 6,029 for FY 2014; 8,503 for FY 2015; 19,033 for FY 2016 and

30,151 for FY 2017. Although the trend has been for an increasing number of searches, it

remains that CBP examines the electronic devices of less than one-hundredth of one percent of

travelers arriving to the United States. Over the past few years, CBP has adapted and adjusted

our actions to align with current threat information, which is often based on intelligence. As the

threat landscape changes, so does CBP. Additionally, travelers are carrying more devices and

more CBP officers have been trained on electronic device searches as more travelers than ever

before are arriving at U.S. ports of entry with multiple electronics. Searches of electronic

devices at the border routinely result in significant enforcement actions despite the rarity of their

use.

Question 84b: What does CBP require of the requesting federal agency before stopping an

American at the border and searching their electronic devices?

ANSWER: The decision to conduct a border search of an electronic device rests exclusively

with CBP and is conducted in accordance with applicable law and policy, including CBP

Directive 3340-049. CBP decisions to perform border searches of electronic devices can benefit

from information provided by other law enforcement agencies.

Question 84c: Must the request be made in writing and do they have to describe what

information or evidence of a crime they are looking for?

ANSWER: CBP liaises with other federal agencies in many ways, including through the Joint

Terrorism Task Force (JTTF). CBP exercises its authority to search electronic devices in concert

with law and policy and driven by CBP operational need to inspect goods and persons crossing

our border. CBP decisions to perform border searches of electronic devices can benefit from

information provided by other law enforcement agencies

Question 85a: During the past five years, have CBP personnel ever surreptitiously installed

surveillance software or malware onto a traveler’s device during a border search?

ANSWER: To my knowledge, CBP personnel have not surreptitiously installed surveillance

software or malware onto a traveler’s device during a border search.

Question 85b: Alternatively, has CBP assisted another government agency in covertly installing

malware onto a traveler’s electronic device?

ANSWER: To my knowledge, CBP personnel have not assisted another government agency in

covertly installing malware onto a traveler’s electronic device.

Question 86a: In your due diligence responses to questions submitted by staff on June 20, 2017,

you enclosed a copy of a muster marked “For Official Use Only” detailing procedures for

handling devices at the border. I request that you make that muster public and submit it into the

record of this hearing alongside your responses to these questions.

If you choose not to make that muster public, please describe your rationale for continuing to

mark it “For Official Use Only.”

ANSWER: The muster speaks to internal operational policy and protocol and contains law

enforcement sensitive material. Nevertheless, CBP has explained publicly that its border

searches extend to the information that is physically resident on the device, and does not extend

to information that is solely located on remote servers (known as solely “in the cloud”), which is

the subject of that muster.

Question 86b: Additionally, please describe for the public what procedures are included in the

muster that ensures agents only search for information not found exclusively on remote servers.

ANSWER: Border searches of electronic devices extend to searches of the information residing

on the physical device when it is presented for inspection or during its detention by CBP for a

border inspection. To ensure that data residing only in the cloud is not accessed, officers are

instructed to ensure that network connectivity is disabled to limit access to remote systems.

Question 87a: How many times did border officers search electronic devices during FY 2017?

ANSWER: CBP processed 388,379,188 travelers during FY 2017 and conducted 30,151 border

searches of electronic devices during that time period.

Question 87b: Of those border device searches, how many were supported by reasonable

suspicion?

ANSWER: CBP does not compile this specific data set, but strictly adheres to court orders in

how it conducts border searches.

Question 87c: Of those border device searches, how many were of U.S. citizens?

ANSWER: 6,003, or fewer than 20 percent.

Question 88: Many of our discussions have included reference to your privacy policy governing

device searches at the border. The American public deserves more certainty than guidelines can

provide, which is why I wrote the Protecting Data at the Border Act. Will you make public any

changes to the privacy policy immediately, and before they are implemented in the field?

ANSWER: If confirmed, I do intend to make the updated policy public. As CBP works to

develop policies and programs that achieve DHS’s mission to protect the homeland, CBP will

continue to work vigorously to minimize the impact on an individual’s privacy. In particular,

CBP will continue to safeguard a traveler’s personal information. We are currently reviewing

CBP Directive 3340-049 to reflect evolving practices and in compliance with the Trade

Enforcement and Trade Facilitation Act of 2015.

Question 89a: When your officers ask travelers and citizens if they can search their devices at

the border, most travelers don’t know they can refuse. Being asked by an agent to search your

intimate possessions is relatively frightening situation for most people, especially when they’re

just trying to catch connecting flights or make important appointments.

It is your policy that people can refuse, but if they do refuse, you can take their device, correct?

ANSWER: CBP may request the traveler’s assistance in presenting his or her effects – including

electronic devices – in a condition that allows inspection of the item and its contents. If a CBP

officer is unable to determine whether an item being brought into the United States is admissible

to this country, as presented for inspection, the officer may detain the item pending a

determination of its admissibility in accordance with the law. To the extent that CBP detains an

electronic device, it provides a custody receipt to the traveler, as outlined in CBP Directive 3340-

049.

Question 89b: I understand you don’t believe you need consent to search a digital device, but I

think it’s important that people know their rights, and that CBP can’t demand people assist in

unlocking a device at the border. Will you to commit to making sure that individuals know their

rights, and your authorities, before they’re asked to provide assistance in searching a device?

ANSWER: CBP profoundly respects the constitutional rights and privacy of our citizens, and

when the fact of a search can be disclosed to the traveler without hampering national security,

law enforcement, or other operational considerations, we continue to provide comprehensive

information to travelers who have experienced a search of their electronic device by offering a

tear sheet that clearly explains and details the authority supporting the search of their electronic

device. This tear sheet is publicly available at:

https://www.cbp.gov/sites/default/files/documents/inspection-electronic-devices-tearsheet.pdf. In

short, CBP provides the traveler with details on how they can request additional information or

report concerns about the search.

Question 90a: Mr. McAleenan, I’m very concerned about the direction our country is headed

given the sharp increase in anti-immigrant rhetoric I’ve witnessed over the last year. From my

family’s experience and from my experience seeing the sacrifices people make to come to our

country, the issue of immigration is one that is near and dear to my heart. Today, we continue to

see this cycle of families and individuals fleeing their home countries in hopes they too can find

a better, safer life in a new country. It’s an amazing thing about our country - that no matter the

many challenges we face, the United States is still the place where immigrants yearn to be.

This is why it is so offensive to me to hear stories about immigration agents stalking locations

that are part of daily life in this country, in order to find and harass suspected immigrants. A few

months ago, I introduced a bill to block immigration agents from stalking sensitive locations like

schools, hospitals, and religious institutions without prior approval. The Protecting Sensitive

Locations Act ensures that immigrants have access to education, criminal justice, and social

services without fear of deportation. The Department of Homeland Security’s existing policy on

sensitive locations would be codified and expanded to ensure that people are not afraid to go to

the doctor, to send their children to school or attend a place of worship.

What is your approach to enforcement in sensitive locations?

ANSWER: CBP’s sensitive locations policy remains in place and I have no plans to change it at

this time. I fully support our officers and agents efforts to enforce the laws of the United States

through their dedicated work in the field. Our policy has guidance for operations at or near

certain locations to ensure that the interruption of daily lives of most Americans is reduced to the

greatest extent possible.

Question 90b: Do you believe that hospitals, schools, courthouses, places of worship,

organizations assisting crime victims and providing services to children, pregnant women, and

those with disabilities should be off limits to enforcement actions, unless exigent circumstances

require it?


this time. I fully support our officers and agents’ efforts to enforce the laws of the United States

through their dedicated work in the field. Our policy has guidance for operations at or near

certain locations to ensure that the interruption of daily lives of most Americans is reduced to the


CBPOs and Agents enforce all applicable U.S. laws, including against illegal immigration,

narcotics smuggling and illegal importation. Inevitably, enforcement actions and investigative

activities may, at times, lead to an apprehension at or near community locations or

establishments which have been deemed as sensitive locations. CBP policy does not preclude its

Officers and Agents from conducting enforcement actions at or near these locations, but directs

that careful consideration be undertaken, including consultation with supervisors where

appropriate. In all cases, Agents and Officers are expected to exercise sound judgment and

common sense while taking appropriate action, and exigent circumstances requiring an Agent or

Officer to enter a sensitive location must be reported immediately to ensure visibility and

oversight.

Question 90c: How do you plan to ensure that CBP officers respect immigrant rights in sensitive

locations?


this time. CBPOs and BPAs do not actively patrol or station themselves outside of locations

deemed sensitive under CBP policy. As noted above, however, if information is received

regarding a violation of federal law at or near those locations, CBP policy does not preclude its

Officers and Border Patrol Agents from conducting enforcement actions at or near these

locations, but directs that careful consideration be undertaken, including consultation with

supervisors where appropriate. In all cases, Agents and Officers are expected to exercise sound

judgment and common sense while taking appropriate action, and exigent circumstances

requiring an agent or officer to enter a sensitive location must be reported immediately to ensure

visibility and oversight.

Question 91: The Republican budget includes massive cuts to domestic spending programs that

are essential to millions of Americans—programs like Meals on Wheels, LIHEAP and Medicaid.

However, the budget also makes room for increased spending for misguided border and

immigration enforcement.

Given CBP’s recent issues with corruption, including more than 140 agents arrested or convicted

on corruption charges, how will you ensure that this funding is only used to hire well-qualified

candidates?

ANSWER: CBP has a workforce of dedicated men and women who are among the finest civil

servants in the world, and who carry out their duties with the utmost professionalism and

efficiency. Recruiting, hiring, and sustaining a world class law enforcement workforce is CBP’s

top mission support priority, and would remain mine, if confirmed. I would ensure appropriate

funding is only used to hire a well-qualified workforce by continually reviewing and enhancing

our hiring process. CBP law enforcement applicants undergo a thorough pre-employment

examination process including a cognitive exam, a structured panel interview, an automated

vetting procedure, a polygraph exam, and a Tier 5 level background investigation. I believe our

process is one of the most rigorous in the government.

I do not favor lowering our standards for frontline personnel, and remain committed to key

background and security steps such as a federally-certified polygraph examination. Any waiver

authority granted by Congress where applicants demonstrate a track record of service and

trustworthiness would be utilized in a judicious manner.

Question 92: Since the President took office, the administration has largely stopped prioritizing

the deportation of undocumented immigrants with criminal records and routinely fails to take

into consideration circumstances like children in the US and community ties. Do you believe that

the best use of CBP resources is to arrest and deport every undocumented immigrant they come

across, no matter the circumstances?

ANSWER: U.S. Border Patrol (USBP) operations between ports of entry are focused on

interdicting illegal border crossings at or near the immediate border and on routes of egress into

the United States. While USBP may arrest all individuals found to have entered the U.S.

illegally during border security operations, the vast majority of apprehensions involve recent

border entrants. Each person who is apprehended is subject to the Consequence Delivery System

(CDS), which ensures the most appropriate actions are applied to each case. CDS standardizes

USBP’s decision-making process specific to each apprehended subject by consistently and

systematically applying consequences and evaluating each consequence’s effectiveness and

efficiency. CDS measures the consequences applied to persons illegally entering the US against

defined alien classifications. CDS includes the analysis of a variety of possible administrative,

criminal, and programmatic consequences and incorporates a number of pre-existing initiatives

and programs. CBP referrals for further immigration enforcement action are subject to

prioritization and adjudication by both U.S. Immigration and Customs Enforcement and the

Executive Office of Immigration Review.

Question 93a: In recent years, the CBP has taken a number of questionable actions that infringe

on the rights of U.S. citizens, permanent residents, and immigrants like roving border patrols,

racial profiling, and unlawful detentions. To reign in the administration’s unfair immigration

policy, I co-sponsored legislation with my colleague Senator Menendez to counter them. The

PROFILED Act guarantees basic due process rights and protections for any individual impacted

by immigration enforcement and detention operations. Targeting American citizens, immigrants

and refugees because of the way they look goes against the very founding ideas of who we are as

Americans. It’s only right that when people are unfairly targeted by law enforcement in our

country, they have the full protection of our laws.

The best practices for federal law enforcement agencies clearly identify that training, data

collection, and accountability are the only way to make a profiling policy work.

Will you implement implicit-bias training for CBP employees to address the obvious racial

profiling that harasses members of our border communities?

ANSWER: CBP policy prohibits the consideration of race or ethnicity in law enforcement,

investigation, and screening activities, in all but the most exceptional circumstances. CBP’s

Standards of Conduct further highlights CBP’s prohibition on bias-motivated conduct and

explicitly requires that “Employees will not act or fail to act on an official matter in a manner

which improperly takes into consideration an individual’s race, color, age, sexual orientation,

religion, sex, national origin, or disability, union membership, or union activities.” The use of

race and ethnicity information in violation of this policy may subject CBP employees to

discipline under the Standards of Conduct. CBP will continue to provide training to ensure

continued adherence to our existing policies on this topic.

Question 93b: Will you collect data on individual stops so that CBP can understand if their

practices are even effective?

ANSWER: CBP documents individual stops in the Intelligent Computer Assisted Detection

(ICAD) system. Our collection practices continue to evolve to ensure we efficiently and

effectively identify and respond to threats to border security. The amount and type of data

collected for individual stops, including vehicle stops and pedestrian interactions, is frequently

reviewed and amended when necessary, within the bounds of our authority. Data we track and

collect from our significant encounters includes time, location and outcome, as well as multiple

other details. CBP has considered adding fields to track specific descriptions of subjects and

vehicle occupants. We determined that it would not be appropriate as it could encourage the

reliance of the perception of ethnicity as a consideration in our stops. Ethnicity is not a primary

consideration in our stops and there are no immediate plans for additional specific additional data

fields. CBP will reinforce its collection activities for stops to ensure that we are collecting

sufficient data to ensure our practices are effective and unbiased.

Question 94a: Considering the CBP has authority to stop and conduct searches within 100

miles of any land or coastal border, I am alarmed at how far and wide CBP’s roughly 20,000

agents’ authority to hassle Americans reaches. Oregon is a coastal state, and I can’t imagine

explaining to voters there that border agents could in fact set up a mobile checkpoint in Portland

- 80 miles inland - and subject them to the kind of harassment a checkpoint encounter entails.

Roving checkpoints have severely impacted border residents’ quality of life, disrupted legitimate

business, and gained the CBP little more than minor drug prosecutions against citizens.

Will you continue to support their use as Commissioner?

ANSWER: USBP checkpoints, both fixed and temporary, are a proven, effective layer in our

multi-layered approach to securing the border and interdicting unlawful entry. Checkpoints are

strategically placed where potentially illegal cross border traffic is most likely to converge as it

makes egress away from the border into the United States. Travelers in vehicles are briefly

questioned as to their citizenship to ensure those out of status are prevented from further entry

into the interior of the country in violation of U.S. immigration laws. As the Supreme Court

recognized in United States v. Martinez-Fuerte, immigration checkpoints are both a

constitutional and necessary law enforcement tool to detect illegal aliens seeking to enter the

United States. 428 U.S. 543 (1976). Accordingly, Border Patrol Agents may ask individuals

about their citizenship and request documents proving their right to be in the U.S.

If confirmed, I would support the continued use of immigration checkpoints as an important part

of a layered border security approach where they provide interdiction capabilities on routes of

egress away from the border. I would not support their use in operationally inefficient or

ineffective manner.

Question 94b: If so, on what evidence of their effectiveness would that decision be based?

ANSWER: The decisions on when and where to operate immigration checkpoints are based on

routes of egress from the border, recent and historical operational results, and current

intelligence. Checkpoints are strategically placed where potentially illegal cross border traffic is

most likely to converge as it makes egress away from the border into the United States. USBP

immigration checkpoints are effective. Border Patrol Agents conduct thousands of immigration

enforcement actions annually resulting in the arrest of criminal aliens, smugglers, and thousands

of individuals that have entered the country unlawfully. USBP also makes significant seizures of

illegal drugs at checkpoints each month. In FY 2017, BPAs apprehended over 6,000 illegal

aliens and seized over 75,000 pounds of illegal narcotics.

Question 95a: In recent years, reports of extremely poor conditions for individuals held in CBP

short-term custody facilities have proliferated, including from facilities in Oregon. Hundreds of

thousands of individuals are held in CBP short-term custody facilities each year. These facilities,

which are designed to detain individuals for up to 72 hours but in practice are often used to hold

people for up to two weeks or longer, lack comprehensive standards, as well as effective

oversight and transparent data collection on detention activities.

Reports from the Northwest Detention Center in Tacoma, Washington have found that

conditions for detainees are troubling, to say the least. Detainees there have reported conditions

including poor hygiene and lack of access to medical care, recreation and nutritious food. DHS

itself has acknowledged “recurring problems” and oversight failures. Multiple federal cases are

pending, one of which credited evidence of “widespread and deplorable conditions.”

What will you do to ensure that conditions in these facilities are appropriate and consistent with

American law and values?

ANSWER: CBP operates short-term holding facilities as defined in the Trade Facilitation and

Trade Enforcement Act of 2015 (TFTEA). TFTEA states in part that “short-term detention’

means detention in a CBP processing center for 72 hours or less” (19 U.S.C. 4301). The vast

majority of individuals apprehended or arrested by CBP are removed, transferred to another

agency, or released from these short-term holding facilities within this 72-hour timeframe. CBP treats all individuals with dignity and respect, and ensures that all such facilities meet all

relevant legal and policy requirements, including the requirements of the Flores v. Reno

Settlement Agreement, the Prison Rape Elimination Act, and CBP National Standards on

Transport, Escort, Detention, and Search (TEDS). Additionally, both CBP’s Office of Field

Operations and U.S. Border Patrol ensure that all agents and officers appropriately monitor the

conditions in hold rooms, and enter pertinent information into the appropriate systems of record

on a regular basis. Conditions in CBP holding facilities are reviewed internally, and are subject

to both DHS Civil Rights and Civil Liberties, and Office of Inspector General oversight.

If confirmed, I will remain committed to the humane care and treatment of individuals in these

short-term holding facilities.

Question 95b: Will CBP commit to increasing transparency regarding its detention facilities, in

terms of public data reporting as well as release of inspections that monitor conditions?

ANSWER: CBP has several compliance mechanisms in place, including a Self-Inspections

Program and inspections by CBP’s Management Inspection Division (MID). DHS’s Office of

Inspector General has also conducted spot inspections of CBP facilities. Additionally, CBP

prepares an annual report assessing CBP efforts to prevent, detect, and respond to sexual abuse

in holding facilities. This report addresses CBP’s efforts to assess and improve the effectiveness

of its sexual abuse prevention, detection, and response policies, practices, and training, and is

posted in CBP’s public Care in Custody webpage.

Question 95c: Please specify what and when such reporting can be expected.

ANSWER: CBP reports assessing CBP efforts to prevent, detect, and respond to sexual abuse in

holding facilities, pursuant to the Department of Homeland Security (DHS) Standards to Prevent,

Detect, and Respond to Sexual Abuse and Assault in Confinement Facilities (6 CFR § 115.188),

https://www.cbp.gov/about/care-in-custody

are prepared annually and made readily available to the public through the CBP Care in Custody

webpage. Additionally, CBP will post final reports of holding facility audits conducted by

independent auditors assessing CBP’s implementation of the Standards to the agency’s public

Web site.

Question 95d: Will you increase transparency by permitting non-governmental/third-party

inspections and publishing statistics on detention operations?

ANSWER: CBP engages with non-governmental organizations (NGOs) frequently, including

providing briefings on our facilities. I personally hosted our last NGO roundtable in October.

Additionally, CBP publishes a range of data on our CBP.gov website that provides information

on demographics and locations of apprehensions and adverse immigration actions.

Question 96: I appreciate your working with me on staffing at the Port of Portland. I

understand international passenger arrivals at the Portland Airport increased 48 percent from

2013 through 2016. The Port of Portland says CBP has done an outstanding job of managing this

dramatic growth with a static staffing level. I expect that it will continue to be a challenge to

safely, securely, and efficiently process new services as the needs grow.

If confirmed, will you continue to work with me to ensure the Portland Airport is properly

staffed to accommodate the immediate and future growth in demand for CBP services?

ANSWER: I appreciate your interest in this topic, and, if confirmed, I look forward to

continuing to work with you to ensure CBP’s ability to facilitate legitimate trade and travel in the

future. Appropriate staffing of our nation’s ports is among the most significant challenges that

we face and is essential to providing a secure and expeditious gateway for trade and travel so

critical to the U.S. economy.

Question 97a: CBP is on the front line of enforcement of our trade laws, but I worry that trade

issues are getting short shrift from this administration. The President promises to pour more

money than ever into border security, at a time when border crossings are at lows not seen since

the 1970s. He has ordered the hiring of 5,000 more Border Patrol agents, in addition to the

planning, designing and construction of a border wall, including millions for prototypes.

In my view, this is a gross misallocation of scarce resources. CBP has consistently failed to meet

minimum staffing requirements set out in statute for trade functions, and is well below the

optimal level for carrying out trade enforcement. The difficulties you and I have discussed in

staffing the Port of Portland is emblematic of the failure to meet staffing goals. What we are

seeing overall is an increase in challenges for trade enforcement, and a decrease in CBP’s

capabilities to meet it.

What is CBP’s staffing target for CBP officers in 2018, and how does that compare with the

latest staffing target from CBP’s Workload Staffing Model?

ANSWER: CBP’s top mission support priority is recruiting, hiring, and sustaining a world-class

law enforcement workforce, and CBP Officers are a fundamental element of that effort. CBP’s

https://www.cbp.gov/about/care-in-custody

estimated FY 2018 Staffing Target for CBPOs is derived from historical Congressional floors

and increases to appropriations and fees, as well as alternative funding. The FY 2018 target of

24,147 is the goal for CBPO hiring efforts and represents our floor for CBPOs.

Updated CBP Workload Staffing Model results submitted to Congress earlier this year continue

to show a need for additional CBP Officers to fully meet the standards set by statute, regulation,

and CBP policies, assuming maintenance of current processes, procedures, technology, and

facilities. The most recent results – factoring in the additional 2,000 CBPOs funded by the FY

2014 DHS Appropriations Act – show a need for 2,516 additional CBPOs above our FY 2018

target. The Administration submitted the updated WSM earlier this year, and the President’s

FY18 budget submission states the intent to submit proposals for authorizing language that

would provide user fee funding to address the funding gap for CBP Officers as we have in past

years.

Question 97b: Have you developed a plan for addressing staffing shortfalls with respect to CBP

officers?

ANSWER: Recruiting, hiring, and sustaining our law enforcement workforce is our top mission

support priority. CBP has developed an integrated plan, led by our Office of Enterprise Services

and supported by the Office of Field Operations. Over the past three years, we have revamped

our hiring efforts with over 40 process improvements that have dramatically decreased the time

to hire.

Our primary focus for FY18 is on enhancing our recruiting efforts to increase the number and

quality of applicants entering our hiring process, to build on the positive trends in applications

and success rate seen over the last 6 months. We have established a National Recruiting

Command, invested in digital advertising, and identified uniformed personnel to serve full-time

to enhance our outreach.

To support the recruitment of CBP Officers specifically, OFO has established a Recruitment

Crisis Action Team (RCAT), and created an OFO National Recruitment Strategy, which is

focused on targeting the right applicants for the CBPO position. OFO has begun to focus

recruitment efforts for the many vacancies on the southwest border area.

OFO is in the process of developing Destination Guides, Port Guides, and “Day in the Life of a

CBPO” videos, all of which will be used at recruitment events and be available on the web in an

electronic version. Going forward, OFO will be training all of our recruiters on the OFO

National Recruitment Strategy, on the usage of the various guides, and have all recruiters target

specific areas, as designated by OFO Headquarters.

Question 97c: Given the President’s goal with respect to hiring Border Patrol agents, how will

you ensure that hiring of CBP officers is not impacted?

ANSWER: CBP continues to strengthen all aspects of its recruitment and hiring strategy to

ensure the entire frontline – both along the border and at every POE – is staffed in accordance

with the expanding complexity and demands of its mission.

In those instances where CBP is concerned about a specific POE being understaffed relative to

others, it will rebalance by directing resources from other Field Offices to fill the gap, as is

evidenced by our recent temporary assignments to the Tucson and San Diego Field Offices.

CBP is continuing work to address 1,132 CBPO positions that are vacant as of September 30,

2017. CBP has worked aggressively over the past several years to implement a multifaceted





workforce. Staffing the frontline with well-qualified individuals of the highest integrity and

capability remains the top mission support priority for CBP.

Question 98a: One of the important things that the 2015 Customs bill did - thanks in large part

to the hard work of Senator Brown - was to close a loophole that allowed goods made with

forced labor into the United States. That was supposed to make sure that there are no

circumstances under which such goods can enter the commerce of the United States. It was the

right thing to do both to protect human rights and to protect U.S. workers from unfair

competition. However, enforcement of this prohibition seems to have stalled under this

Administration.

I understand that CBP is considering regulations on this topic. If confirmed, will you commit to

working with my staff to ensure that regulations are aimed at vigorous enforcement of the ban on

goods made with forced labor from entering the United States?

ANSWER: Yes. I am committed to rigorous enforcement of forced labor prohibitions. CBP is

undertaking a regulatory review to ensure that we are using all CBP authorities, and other agency

resources effectively in forced labor enforcement efforts.

Question 98b: What other steps are you taking to step up enforcement?

ANSWER: CBP has taken a number of steps to enhance enforcement of forced labor in supply

chains since TFTEA was enacted. CBP engaged specific industry sectors through our Centers of

Excellence and Expertise and our regulatory auditors to conduct bi-directional education and

assess best practices of risk mitigation and compliance related to forced labor in the global

supply chain. We updated our internal enforcement policies to require mandatory referral to

U.S. Immigration and Customs Enforcement, Homeland Security Investigations (HSI) for all

allegations of forced labor. As with other criminal fraud referrals, CBP works closely with HSI

and the Department of Justice (DOJ) to support these investigations. To date CBP has referred

six forced labor allegations to HSI.

CBP is committed to working with Congress, private sector, Civil Society Organizations, and

interagency stakeholders to craft the most effective approach to modernize the regulations to

protect human rights and to protect U.S. workers from unfair competition. CBP has undertaken

an active communications effort to ensure importers are aware of the risks associated with forced

labor, what their compliance responsibilities are and how they can validate that their supply

chains are free of forced labor. CBP published technical corrections to the forced labor

regulations to remove the consumptive demand loophole and is now outlining substantive

changes to allow for an agile enforcement response.

My staff is actively engaged in the DHS-led Forced Labor Interagency Working Group, which

includes ICE, Department of State, DOJ, U.S. Agency for International Development,

Department of Treasury, General Services Administration and Department of Labor. CBP works

closely with these agencies, when appropriate, to evaluate forced labor cases and allegations.

We have also leveraged intelligence units within our Office of Trade and OFO’s National

Targeting Center, Counter Networks Division. In the last two years, CBP has detained

$6,307,926 in goods suspected of violating 19 U.S.C. §1307. Most recently, CBP detained

eleven shipments of seafood suspected of being processed by companies in China using the labor

of North Korean nationals. The shipments are valued at $564,775 and are detained at four ports

of entry. Further, OFO issued an Action memorandum to the Centers directing them to issue

requests for information to approximately 235 importers. This effort focuses on manufacturers

and importers with links to the areas within China suspected of using the labor of North Korean

nationals to manufacture goods destined for the United States.

CBP also continues to meet with Civil Society Organizations to ensure we are aware of trends,

insights, and concerns that these groups possess into forced labor issues. If confirmed, I will

continue to implement aggressive and broad-based enforcement efforts to address the challenge

of goods manufactured with forced labor entering our supply chain.

Question 99a: The Trade Facilitation and Trade Enforcement Act of 2015 required CBP to

establish a risk assessment program to adjust the bonding amount based on importer risk, to

ensure that the customs revenue is collected from trade cheats that evade our laws, underpay

duties, and then cut and run. I am not aware that any such program has been established to date,

even though we are almost a year past the deadlines. At the same time, President Trump signed

an executive order that mandated a narrower plan to provide security for the payment of anti-

dumping and countervailing duties. I understand that plan is being finalized for delivery to the

White House.

ANSWER: CBP is actively working on implemented risk-based bonding as directed in TFTEA.

The CBP Office of Trade (OT) has led an internal working group with the Centers of Excellence

and Expertise and the Office of Finance to identify key risk factors to incorporate into the Risk

Assessment Guidelines called for in TFTEA Section 115-Importer Risk Assessment Program. At

the same time, the OT is developing statistical models for risk based bonding to determine which

risk factors have a strong statistical correlation with future AD/CVD non-payment. CBP is

currently working with the COAC Trade Enforcement and Revenue Committee’s Bond Working

Group on ways to implement enhanced bonding procedures as work on the statistical models

progresses. OT plans to pilot this process in FY18. Once fully deployed, CBP will use the

statistical results to adjust bond amounts to protect government revenue and apply AD/CVD

orders effectively.

The plan called for in Executive Order 13785, entitled “Establishing Enhanced Collection and

Enforcement of Antidumping and Countervailing Duties and Violations of Trade and Customs

Laws,” has been finalized and delivered to the White House.

Question 99b: Presumably, you have submitted the plan mandated by the executive order to the

President, but what are your intentions for complying with the mandate in the Trade Facilitation

and Trade Enforcement Act?

ANSWER: CBP is actively working to comply fully with the mandate in TFTEA. CBP is

pursuing a rigorous analysis process to ensure that risk factors used in assessing importers are

defensible and meaningful predictors of importer risk. The Office of Trade (OT) has led an

internal working group with the Centers of Excellence and Expertise and the Office of Finance to

identify key risk factors to incorporate into the Risk Assessment Guidelines called for in TFTEA

Section 115-Importer Risk Assessment Program. At the same time, the OT is developing

statistical models to determine which risk factors have a strong statistical correlation with future

AD/CVD non-payment. The CBP Office of Trade plans to pilot this process in FY 2018. Once

fully deployed, CBP will use the statistical results to adjust bond amounts to protect government

revenue and apply AD/CVD orders effectively.

Question 100a: In the Trade Facilitation and Trade Enforcement Act of 2015, we raised the de

minimis threshold for imports so that when small businesses bring in low-value shipments they

don’t need to go through the red tape or pay duties to bring inputs or product returns into the

countries. I was a big proponent of this because it is a huge boon for small businesses that don’t

have the resources to navigate all the requirements for their smaller and less frequent imports.

This is critical to the digital economy, where very small businesses now have a global reach and

our trade policy should support that fact.

If confirmed, are you committed to ensuring that de minimis shipments remain as streamlined as

possible—and that new requirements aren’t imposed on them?

ANSWER: Facilitation of cargo and support of U.S. competiveness is a key part of CBP’s trade

mission. Streamlining and promoting frictionless trade are CBP’s goals especially in light of

changing technologies and business processes. CBP has been working closely with the trade

community and participating government agencies to facilitate low value cargo while ensuring

that shipments facilitated by e-Commerce are complying with CBP and other agency regulatory

requirements.

Question 100b: If confirmed, will you commit to ensuring that CBP aggressively pursues the

adoption of similar de minimis threshold by our trading partners, through the World Customs

Organization, trade agreements negotiations, and other fora?

ANSWER: Harmonizing de minimis approaches with other trade partners would be beneficial

and contribute to the reduction in supply chain barriers globally. CBP is working with

stakeholders in the private sector and the WCO to share best practices and lessons learned as we

implement the TFTEA de minimis level increase. In addition, we are providing subject matter

expertise to the U.S. Trade Representative, as it pursues the negotiating objectives as expressed

in TFTEA around de minimis.

Question 101a: Mr. McAleenan, as you know, the customs reauthorization bill signed into law

last year included the Enforce Act—the product of years of work by this Committee to address

brazen evasion of U.S. trade laws before businesses are sunk and jobs are lost. CBP started

implementing the Enforce Act over a year ago.

Can you give me an update on your enforcement actions under the Enforce Act provisions so

far?

ANSWER: To date, CBP has initiated over 14 EAPA investigations and has reached an

affirmative determination at the interim measures stage for each of them. These investigations

cover various products, including wire garment hangers, wooden bedroom furniture, diamond

sawblades, and oil country tubular goods (steel tubing). The interim measures taken protect the

revenue, such as providing cash deposits on subsequent entries, suspending and extending

liquidation of entries, rejecting entries summaries that are within the reject period, as well as

evaluating the continuous bond and requiring single transaction bonds, as appropriate. In these

investigations, the Trade Remedy Law Enforcement Directorate has coordinated more than 10

foreign onsite verifications, including two locations in Thailand and eight locations in Malaysia,

among others, as well as domestic onsite verifications and multiple cargo exams. The onsite

verifications are crucial to gather evidence of exporter production capability and capacity, to

assess the information against that provided in the allegations and CBP’s own research of the

exporters and importers.

The first EAPA allegation was filed only a few weeks after the regulations went into effect. CBP

quickly formed a small cohesive investigative unit and completed its work well ahead of the

statutory deadline for interim measures. In that first investigation, CBP initiated a unique

investigative approach to obtain key information when the parties being investigated declined to

participate. CBP reached its determination on interim measures a month ahead of the statutory

deadline and issued its final determination to the parties to the investigation on August 14, 2017.

The notice explained that there was substantial evidence on the record that merchandise was

entered into the U.S. customs territory through evasion via transshipment of wire hangers from

China through Thailand. As a result of this enforcement effort, the alleger filed eight more

allegations and to date, these investigations alone have stopped the evasion of $33 million in

anti-dumping duties annually.

Question 101b: In my view, the success of implementation will hinge on the input of

stakeholders. If confirmed, do you commit to working on increasing transparency and

opportunities for stakeholder input in Enforce proceedings?

ANSWER: Yes. To further the transparency of the EAPA investigations, we have provided a

website to post both our decisions as well as background information on the investigations. We

have already held a workshop with industry in April 2017 and anticipate another in early 2018 in

order to engage stakeholders. Further in addition to our other public outreach efforts, EAPA

investigations have been on the agenda at our East and West Coast Symposiums for the last two

years and this provides another avenue for engagement with stakeholders on the program. I

intend to listen carefully to stakeholder input and work closely with Congress on EAPA

implementation as we continue forward.

Question 102: I requested a report from the Government Accountability Office that was

released in July regarding U.S. Foreign Trade Zones (FTZs) and CBP’s oversight of compliance

with U.S. trade laws in the FTZ program. GAO found that CBP had not assessed compliance

risks across the FTZ program, and therefore could not analyze and respond to the risk. That

finding is troubling given that the FTZ program accounted for about 11 percent, or $245 billion,

of imports in 2015.

What is CBP doing to address the shortfalls identified by GAO, and what are the plans for the

future to ensure compliance across the FTZ program?

ANSWER: CBP concurred with the findings of this report from GAO and identified the gaps

with GAO as part of the program review. We were pleased that detailed reviews did not identify

revenue losses or other serious issues with the program, but rather that CBP was still

transitioning from a paper based process, monitored at the local level, to a much more automated

process under ACE that would allow for modernization and automation of CBP’s control

processes as well. We have determined that we will take a multi-step approach to this review and

update of this important oversight:

1. As of October 1, 2017, CBP is collecting in a centralized database, the results of all

compliance reviews and risk assessments performed nationwide by ports. As per the GAO

recommendation, we will collect the first year worth of data for the purposes of a national

review of the risk assessment process applied to FTZ oversight.

2. Starting October 1, 2018, CBP will begin the comprehensive national FTZ risk assessment

review based on the data collected for the Fiscal Year. That process is expected to take 90

days. At the end of that period, CBP will issue updated risk assessment procedures based on

any gaps identified in the risk assessment review and implement same.

Concurrent to the risk assessment review and collection, CBP is undergoing a comprehensive

review of current procedures with the goal of using automation more effectively for

oversight. Current paper processes are being reviewed and assessed to see if automated

alternatives can be utilized (paper files vs. ACE reports for example) and determining the

timeframes for these implementations based on availability of technology. CBP has further

targeted an updated in the internal Compliance Review Handbook for March 2019.

Question 103a: President Trump has repeatedly said he will build a wall along the 2,000-mile

southern border. Not only would this be extremely costly, but it would also require the

confiscation of private lands by the federal government and would likely result in numerous legal

challenges and environmental damage.

A September 2017 report by the DHS Office of Immigration Statistics found that illegal entries

were at their lowest level since 2000 and likely since the early 1970’s. Further, numerous reports

by GAO and other government bodies have criticized the lack of systematic assessment of border

barrier effectiveness. In light of the significant drop in unauthorized entries, which began long

before this administration, and the uncertainty of the effectiveness of border walls, is it optimal

use of taxpayer resources to spend billions of dollars on a border wall?

ANSWER: The border environment is dynamic and the threat situation is driven by adversary

actions and is constantly in flux. CBP must be afforded flexibilities to remain agile to respond

appropriately based on current mission needs and resourced to address capability gaps.


and road access, surveillance technology, response capability and personnel. The U.S. Border

Patrol maintains a Capabilities Gap Analysis Process that begins with input from the sector level,

and has identified the necessary capabilities to secure the border. The four key Master

Capabilities are: Domain Awareness, Impedance and Denial, Access and Mobility, and Mission

Readiness.

A significant portion of the success we have realized over the last decade and a half can be

attributed largely to increased deployment of impedance and denial infrastructure. Border wall

provides an important and enduring capability to impede or deny illegal crossings in those areas

where it is applied, as demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but it is

not effective alone, and is not an appropriate solution for every area of the border. It is most

effective where there are populated areas near the line on the U.S. side of the border, where

illegal crossers can vanish within residential and commercial areas.






USBP will continue to utilize the Capabilities Gap Analysis Process to identify mission needs

and offer courses of action to fill gaps – impedance, technology, people – or a balance of all

three depending on available resources. We will build wall where it is prudent and effective and

the design will change based on the environment and operational needs. We will deploy

technology to produce domain awareness of illegal criminal activity exposing our citizens to risk.

We will increase the hiring and deployment of new and relocate existing agents to both areas of

increased threat and increased activity. A comprehensive view of all border threats, risks and

activity is essential.

The significant improvements in border security over the past 10-15 years are promising, and

reflect the benefits of sustained investment in border security capabilities based on operational

requirements, combined with the effective operational strategies applied by the US Border

Patrol, along with improvements in enforcement policies and consequence delivery. Despite

these improvements, we continue to see over 25,000 apprehensions of illegal crossings per

month between ports of entry, as well as increasing amounts of hard narcotics seizures. These

threats—over 830 people a day—include previously deported criminals, hardened smugglers

employed by ruthless cartels, and other potential security risks. It remains CBP’s responsibility

to effectively interdict and deter these crossings, in concert with immigration enforcement

partners and supported by appropriations and authorities from Congress as we strive toward

operational control, the effective deterrence or interdiction of all illegal crossings. The

impedance and denial capability provided by border wall remains an important component of

that effort.

Question 103b: This is now the third administration that you have served under within CBP and

its predecessor agency the U.S. Customs Service. Have you ever recommended the building of a

border wall?

ANSWER: During the Bush Administration, when I served as Director of Antiterrorism and

Senior Counselor to then-Commissioner Robert C. Bonner, I was involved with, and supported,

the development of U.S. Border Patrol resource requirements to enhance security on the

Southwest Border. Those requirements, developed in support of the budget processes and

security initiatives during the 2004-2006 timeframe, included investments in border wall and

security infrastructure in key high-traffic sectors such as Tucson, Arizona, and were largely

supported by bipartisan majorities and the Secure Fence Act. Then, as now, I relied on the

recommendations of the operators in the field who identified key capabilities needed to enhance

border security.

Additionally, during my tenure as Deputy Commissioner, CBP requested funding for, and

invested approximately $70 million to replace approximately ten miles of legacy pedestrian

barrier in Naco and San Luis, Arizona as well as Sunland Park, New Mexico.

Question 104: A fundamental task of CBP is to collect revenue. CBP’s collection of tariffs on

imports is the second largest source of revenue for the Federal government. In addition, CBP’s

revenue collection protects U.S. businesses and workers. Much of the uncollected revenue

comes from foreign goods subject to anti-dumping and countervailing duty orders put in place to

protect U.S. manufacturers from unfair trade practices. Congress said in the Trade Enforcement

Bill that revenue collection is a priority trade issue.

If confirmed, what will you do to make revenue collection a priority, particularly when that

revenue is also collected to protect American workers and business?

ANSWER: Duty collection is a critical component of revenue and AD/CVD enforcement, which

are both priorities for CBP. CBP targets revenue and AD/CVD risks by relying on data informed

analysis for underpayment of duties due to various types of evasion schemes to include

misclassification, undervaluation, failing to file AD/CVD entries, and illegal transshipment.

CBP is exploring creative ways to adjust bonding requirements to mitigate the risk of non-

payment that certain importers present, collaborating with our Surety trade chain partners. CBP

has identified options for risk-based bonding as part of its implementation of Section 115 of

Trade Facilitation and Trade Enforcement Act (TFTEA) (Pub. L. 114-125). CBP’s intent is to

use this new TFTEA authority to statistically predict the risk of future non-payment of duties,

taxes, and fees and adjust bond amounts to protect government revenue and apply AD/CVD

orders effectively. In addition, as required by Executive Order 13785, DHS has submitted a

report to the White House outlining a plan for risk-based bonding to provide greater security to

secure payments of final AD/CVD and other unpaid bills. CBP has automated the securing of

bonds within ACE (e-Bonds) that centralizes CBP’s management of bonds and ensures bonds are

properly executed thus facilitating the collection of monies owed that are secured by bonds.

When CBP identifies revenue risks from AD/CVD imports, CBP is proactively requesting

additional security in the form of single transaction bonds from importers. Despite repeated

court challenges, CBP continues these efforts to secure AD/CVD revenue. CBP has also been

successful in recent years in taking sureties to court to collect delinquent AD/CVD when sureties

do not fulfill their legal obligation to pay amounts owed. CBP has had great success in

aggressively pursuing sureties in these cases to establish a clear monetary incentive for sureties

to make prompt payment upon demand. CBP will continue to actively pursue collection of

uncollected AD/CVD and regular duties against delinquent importers and sureties.

Question 105: Illegal logging doesn’t just hurt the environment, it hurts sawmill workers in

Oregon and around the country who have to compete with an influx of cheap stolen wood. I

have fought for years to stop trade in illegally harvested timber. As you know, the enforcement

legislation Congress passed last year requires Customs agents to be trained in detection and

seizure of illegally traded fish, wildlife, and plants.

Can you provide an update on your work with experts such as the World Wildlife Fund and the

Environmental Investigation Agency to develop and implement an effective training module on

illegal logging and begin trainings, so that America’s port officers are fully equipped to deal with

illegal trade in wood products?

ANSWER: An Illegal Logging Issues Seminar was held in New Orleans in September 2017, for

key CBP personnel, with the assistance of the World Wildlife Fund (WWF), DOJ, CBP

Laboratory and Scientific Services, and the Industrial and Manufacturing Materials Center of

Excellence and Expertise. The seminar presented a comprehensive overview of illegal logging

issues, global priority threats, and specific species for priority. Based on participant feedback

received at this seminar, CBP will refine this training module further and present it more broadly

via webinar to CBP field personnel nationwide in FY 2018.


THE HONORABLE Debbie Stabenow







Question 106a: I continue to be concerned about countries that break the rules and evade U.S.

trade laws. Last Congress, the Enforce and Protect Act was signed into law as part of an effort to

crack down on duty evasion. Duty evasion has affected businesses and workers in numerous

industries, including in Michigan. It is critical that we work together to ensure our trade laws are

being enforced.

How will you ensure that we are effectively countering duty evasion?

ANSWER: To date, CBP has initiated over 14 Enforce and Protect Act (EAPA) investigations,

and has reached an affirmative determination at the interim measures stage for each of them.

These investigations cover various products, including wire garment hangers, wooden bedroom

furniture, diamond sawblades, and oil country tubular goods (steel tubing). The interim measures

taken protect the revenue, such as providing cash deposits on subsequent entries, suspending and

extending liquidation of entries, rejecting entries summaries that are within the reject period, as

well as evaluating the continuous bond and requiring single transaction bonds, as appropriate. In

these investigations, the Trade Remedy Law Enforcement Directorate has coordinated more than

10 foreign onsite verifications, including two locations in Thailand and eight locations in

Malaysia, among others, as well as domestic onsite verifications and multiple cargo exams. The

onsite verifications are crucial to gather evidence of exporter production capability and capacity,

to assess the information against that provided in the allegations and CBP’s own research of the

exporters and importers.


quickly formed a cohesive investigative unit and completed its work well ahead of the statutory

deadline for interim measures. In that first investigation, CBP initiated a unique investigative

approach to obtain key information when the parties being investigated declined to participate.

CBP reached its determination on interim measures a month ahead of the statutory deadline and

issued its final determination to the parties to the investigation on August 14, 2017. The notice

explained that there was substantial evidence on the record that merchandise was entered into the

U.S. customs territory through evasion via transshipment of wire hangers from China through

Thailand. As a result of this enforcement effort, the alleger filed eight more allegations and to

date, these investigations alone have stopped the evasion of $33 million AD duties annually.

Question 106b Will you commit to fully implementing the law so that affected industries and

workers are able to participate in the process for duty evasion cases?

ANSWER: Yes, CBP is fully committed to implementing EAPA.

Question 107: The U.S. sugar industry supports 142,000 jobs across the country, including

thousands of jobs in Michigan. Unfortunately, our producers have been hurt by very low prices

and volatility caused by Mexico dumping large volumes of sugar on the U.S. market. I am

hopeful that this dumping will be stopped by the revised antidumping and countervailing duty

suspension agreements negotiated earlier this year. However, the success of the agreements will

largely depend on Customs and Border Protection adequately enforcing them.

If confirmed, will you commit to working closely with the Departments of Agriculture and

Commerce to monitor and enforce these agreements, and make enforcement of these suspension

agreements a priority for CBP?

ANSWER: Yes; I can commit, if confirmed, to work closely with USDA to monitor and enforce

the revised antidumping and countervailing duty suspension agreements negotiated with Mexico

earlier this year.

Question 108: I appreciated our earlier discussion about the importance of CBP working closely

with the Department of Agriculture’s Animal and Plant Health Inspection Service (APHIS) to

protect farmers from invasive pests and diseases. Agriculture is Michigan’s second-largest

industry, and our farmers are increasingly facing these threats. For example, our cherry growers

have been grappling with the damage caused by spotted-wing drosophila for several years now.

Just last week, USDA confirmed the presence of a new invasive pest, the European cherry fruit

fly, in upstate New York.

If confirmed, will you commit to a strong partnership with APHIS at the border to protect our

farmers?

ANSWER: Yes, I will continue to commit to a strong partnership with APHIS. With regards to

preventing the introduction of nonnative destructive pests into the United States, the CBP-

APHIS relationship is symbiotic in nature. Strong collaboration with APHIS is an integral

component to the overall success of the mission. APHIS has the scientific resources needed to

effectively assess risk and promulgate agriculture safeguarding regulations, whereas CBP has the

autonomy and operational capability needed for immediate implementation and action.

Question 109a: I am troubled by the allegations that U.S. Customs and Border Protection

officers at Newark Liberty International Airport subjected new officers to what is being


THE HONORABLE Robert Menendez







described as “hazing” rituals. On September 13th, three CBP officers were arrested and charged

with forcibly assaulting, impeding, intimidating, and interfering with two men identified as

victims who were both CBP officers at the time the incidents occurred. The three officers who

have been charged were members of the Passenger Enforcement Rover Team, or PERT, a

specialized unit within CBP which is tasked with preventing passengers from bringing illegal

items into the United States. The alleged assaults took place at Newark Liberty International

Airport on top of what has been described as a “rape table.”

You committed to me in private that you were well aware of this situation and found this conduct

unacceptable. While charges have been filed against these three CBP officers, what actions has

CBP taken to ensure that Newark Liberty International Airport is not only safe for CBP officers,

but the people who utilize the airport on a daily basis?

ANSWER: Following the allegations at Newark Liberty International Airport, swift and decisive

action was taken by the Office of Field Operations (OFO). Significant changes were made to

U.S. Customs and Border Protection (CBP) management at Newark International Liberty

Airport. Eleven CBP employees, including three supervisors, were immediately placed on

administrative duty and their firearms, badges, and access to sensitive databases were suspended

while DHS' Office of the Inspector General investigated the allegations. Also, on May 11, 2017,

the Passenger Enforcement Rover Team in Newark was disbanded. Managers and Enforcement

Team trainers from John F. Kennedy International Airport were assigned to Newark to review

and assess operations, provide training, and assist with the reorganization of Newark’s

Enforcement Team. Additionally, port chaplaincy, peer support programs, and on-site Employee

Assistance Program training and counseling have been made available to CBP employees in

Newark.

In May 2017, the OFO Executive Director for Operations issued a memorandum and a muster to

the Directors of Field Operations reminding all employees of the Standards of Conduct for CBP

employees, stressing that U.S. Customs and Border Protection (CBP) employees are responsible

for their actions. CBP employees, to include supervisors and managers, were reminded not to

engage in or promote, criminal, infamous, dishonest, or notoriously distasteful conduct, or any

conduct prejudicial to the government on or off duty. The muster noted that all employees are

required to immediately report inappropriate behavior by other employees. This muster

reiterated that the failure to operate under a zero tolerance environment may lead to disciplinary

actions. In addition, memoranda and musters were issued reminding all employees of the

requirement to act professionally when processing all persons entering and exiting the country.

CBP increased Headquarters and local management oversight into complaints which serves to

quickly identify employees who are potentially at risk of participating in behavior that would be

indicative of egregious misconduct. Please be assured that CBP takes all allegations of

employee misconduct seriously. Every CBP employee is required to immediately report

misconduct to his or her supervisor or other management official, the Office of Professional

Responsibility (OPR), or the DHS OIG. In addition, CBP’s Standards of Conduct stipulate that

nothing in the Standards should be construed or applied to interfere with an employee’s right to

communicate with their Congressional representatives and to engage in activity protected by the

Whistleblower Protection Act. Moreover, CBP’s policies and practices support the protection of

employees who fulfill their obligation to report misconduct. To promote awareness, CBP has

distributed materials regarding whistleblower rights and posted information in prominent

locations within CBP offices. Additionally, CBP requires all employees to complete training at

least every two years regarding their rights and remedies under antidiscrimination, retaliation and

whistleblower protection laws.

CBP’s most valuable attributes in protecting the American people are the integrity and

professionalism of its workforce. The alleged acts of a limited number of individuals at Newark

Liberty International Airport could tarnish the reputation of the nearly 60,000 dedicated CBP

employees who take the utmost pride in performing their duties with vigilance, integrity, and

professionalism, in order to earn and maintain the public’s trust. CBP’s focus on employee

accountability and transparency is only as good as its commitment to exemplifying and standing

by those principles.

Question 109b: How are you assuring the public that the officers whose duty it is to identify

dangerous contraband and threats to national security are not compromised in any way after three

of their members have been charged with a serious crime?

ANSWER: If allowed to stand without investigation or action, the allegations could have

undermined the reputation of the thousands of CBP Officers who take the utmost pride in

performing their duties with vigilance, integrity, and professionalism, in order to earn and

maintain the public’s trust. In response, I ensured that appropriate management actions were

taken and that CBP’s Office of Professional Responsibility fully supported the Office of

Inspector General investigation.

Question 109c: According to reports, the new officers were initially reluctant to file a complaint

about this hazing ritual, since the officers committing the acts were well connected within CBP.

How can you prevent similar behavior in the future and will you commit to putting procedures in

place to ensure this type of conduct is discovered sooner and officers feel comfortable reporting

abuses?

ANSWER: These allegations were ultimately routed through the CBP Joint Intake Center and

CBP’s swift and decisive action serves as an example for those that may be reluctant to come

forward that the process to file these complaints does work. I am committed, if confirmed, to

ensuring that every CBP employee feels that they can immediately report misconduct to his or

her supervisor or other management official, the Office of Professional Responsibility (OPR) or

the DHS OIG.

In addition, CBP’s Standards of Conduct stipulate that nothing in the Standards should be

construed or applied to interfere with an employee’s right to communicate with their

Congressional representatives and to engage in activity protected by the Whistleblower

Protection Act. Moreover, CBP’s policies and practices support the protection of employees

who fulfill their obligation to report misconduct. To promote awareness, CBP has distributed

materials regarding whistleblower rights and posted information in prominent locations within

CBP offices. Additionally, CBP requires all employees to complete training at least every two

years regarding their rights and remedies under antidiscrimination, retaliation and whistleblower

protection laws.

Question 109d: Please provide any updated training or operational changes that are being

considered or are currently in place.

ANSWER: Shortly after the alleged misconduct became known to OFO, musters geared toward

both managers and employees were issued to each employee reiterating the Standards of

Conduct and the Office of Human Resources Management Table of Offenses for unprofessional

and disruptive behavior. CBP has distributed materials regarding whistleblower rights and

posted information in prominent locations within CBP offices. OFO also maintains a robust

professionalism program at each Field Office, with over 200 Professionalism Service Managers

(PSMs) nationwide. OFO Headquarters conducts routine conference calls with all PSMs to

discuss topics of concern and best practices on how to avoid and address unprofessional and

disruptive behavior. Finally, CBP requires all employees to complete training at least every two

years regarding their rights and remedies under antidiscrimination, retaliation and whistleblower

protection laws. As part of this training, employees are advised of the avenues for reporting

wrongdoing and the resources available to assist them with any questions or concerns about

discrimination, retaliation, mismanagement, waste, fraud, or abuse.

Question 109e: While charges have been filed against three CBP Officers, there were reports of

other CBP Officers who complained of assault or harassment by their coworkers at the Newark

Liberty International Airport. In particular, one female officer stated that she was tied to a chair,

put into confinement, and had a gun pointed at her. Is the Inspector General still investigating

incidents at the Newark Liberty International Airport?

ANSWER: I must defer questions on the status of any ongoing OIG investigations to the

Inspector General. For CBP’s part, CBP OPR Headquarters became aware of the alleged

misconduct in Newark on or about January 23, 2017, when the allegations were reported via

email to CBP’s OPR. In accordance with DHS Management Directive 810.1, the information

was forwarded immediately to the DHS Office of Inspector General (OIG), which opened an

investigation. CBP’s OPR has actively supporting the DHS OIG investigation.

Question 109f: If so, what is the status of these investigations?

ANSWER: It would be more appropriate to defer any questions on the status of any OIG

investigations to the Inspector General.

Question 110a: We discussed at our meeting reports that a number of border officials are

making factually incorrect statements to those fleeing persecution and arriving at our borders.

Human Rights First published a report “Crossing the Line” documenting examples of asylum

seekers being turned away from the border without the proper protocol being followed. A lawsuit

was filed against Secretary Kelly at Department of Homeland Security and you as Acting

Commissioner of the United States Customs and Border Protection. The lawsuit alleges that

CBP officials have systematically violated U.S. law and binding international human rights law

by refusing to allow asylum seekers who present themselves at ports of entry along the U.S.-

Mexico border and assert their intention to apply for asylum or a fear of returning to their home

country the ability to seek protection in the United States.

What action has CBP taken to correct these issues and ensure that officers are complying with

the law?




legal international obligations for the protection of vulnerable and persecuted persons. The laws

of the United States, as well as international treaties to which we are a party, allow people to

seek asylum on the grounds that they are being persecuted outside of the United States because

of their race, religion, nationality, membership in a particular social group, or political opinion.

CBP understands the importance of complying with these laws designed to protect some of the

world’s most vulnerable populations, and takes its legal obligations seriously. Accordingly, CBP

has designed policies and procedures based on these legal standards, in order to protect

vulnerable and persecuted persons in accordance with these legal obligations. All CBP officers

must comply with all law and policy, investigations are initiated whenever specific complaints

are received, and appropriate disciplinary action may be taken against those who do not follow

law and policy.

Question 110b: What steps will you commit to taking to ensure that this practice ends

immediately across the southern border?

ANSWER: CBP takes any allegation of employee misconduct very seriously. All complaints

against officers, regardless of the mode through which they are received, are recorded and

investigated, and appropriate action is taken against CBP employees who are found to have

violated agency policy. Additionally, CBP’s Office of Professional Responsibility (OPR) has

been actively engaged with Non-Governmental Organizations (NGOs) to identify and investigate

incidents alleging that persons were prevented or discouraged from making claims of fear to

CBP.

Question 110c: Do you think that border officials are properly trained in their role of referring

asylum seekers and our asylum policies?



by an asylum officer. In the vast majority of cases, CBP carries out its mission of border security

while adhering assiduously to U.S. and legal international obligations for the protection of

vulnerable and persecuted persons. CBP recognizes the importance of thoroughly training our

frontline officers and agents. Both Border Patrol Agents (BPAs) and Customs and Border

Protection Officers (CBPOs) receive training on the proper processing, treatment, and referral of

aliens who express a fear of return. This training begins at the Academies, and is reinforced

through Post Academy training and the periodic issuance of memoranda and musters.

Question 110d: What steps have you taken or will you take to ensure that both Border Patrol

agents and Office of Field Operations officers are trained on referrals of asylum seekers?

ANSWER: Both Border Patrol Agents (BPAs) and Customs and Border Protection Officers

(CBPOs) receive training on the proper processing, treatment, and referral of aliens who express

a fear of return. This training begins at the Academies, and is reinforced through Post Academy

training and the periodic issuance of memoranda and musters.

Question 110e: Will you issue written guidance to the field to make clear U.S. legal obligations

are being fulfilled and border enforcement policies and practices do not dissuade or prevent

genuine asylum-seekers from legally seeking protection in the U.S.?

ANSWER: CBP issues periodic guidance to the field reminding CBP Officers and Agents of

their legal obligations towards those who express a fear of return, and has done so recently. If

confirmed, I will ensure that continued guidance is communicated.

Question 111a: In 2015, the Office on Inspector General expressed concern that DHS was

violating international law by referring individuals who expressed fear of persecution for

criminal prosecution for illegal entry and/or re-entry before DHS determined whether the

individuals might have a valid claim for persecution under U.S. law. Additionally, a recent

article reported that a young woman who was tortured and raped after being turned away from

the U.S. was charged with criminal re-entry when she attempted to cross the border a third time

seeking asylum4.

What action has CBP taken to correct these issues and ensure that officers are complying with

the law?

ANSWER: It is CBP’s policy to treat all individuals in a professional manner and with dignity

and respect, consistent with U.S. laws and international obligations. According to U.S. law and

CBP policy, if an officer or agent encounters an individual who is not lawfully present or who is

seeking admission, at or between ports of entry, the person is amenable to expedited removal,

pursuant to Section 235(b)(1) of the Immigration and Nationality Act. If an individual expresses

a fear of being returned to his or her home country, CBP officers and agents record verbal and

non-verbal indications of fear and refer the person for an interview with a U.S. Citizenship and

Immigration Services (USCIS) Asylum Officer. CBP officers and agents do not make any

determination on the validity of such claims.

In any instance in which an applicant for admission may be subject to a criminal charge, CBP

consults with local U.S. Attorney’s Office (USAO). The USAO, given specific

facts/circumstances, will make a determination as to whether to take a case for criminal

prosecution. Criminal prosecution proceeds separately from any administrative processing,

including expedited removal/credible fear, by CBP.

4 Stanton, John. “All it Takes is Torture.” Buzzfeed News, October 10, 2017, https://www.buzzfeed.com/johnstanton/a-young-woman-was-tortured-and-raped-after-being-turned?utm_term=.euNYok8X9Z#.kiagKodxm7

https://www.buzzfeed.com/johnstanton/a-young-woman-was-tortured-and-raped-after-being-turned?utm_term=.euNYok8X9Z#.kiagKodxm7

https://www.buzzfeed.com/johnstanton/a-young-woman-was-tortured-and-raped-after-being-turned?utm_term=.euNYok8X9Z#.kiagKodxm7

Question 111b: What steps have you taken or will you take to ensure that Border Patrol agents

and Office of Field Operations officers are trained on this legal obligation and how referral of

asylum-seekers for prosecution violates U.S. law?

ANSWER: Both Border Patrol Agents (BPAs) and Customs and Border Protection Officers



training and the periodic issuance of memoranda and musters.

Question 112a: What written or oral guidance has been given to CBP employees regarding

enforcement of priorities and the exercise of prosecutorial discretion apart from the January 25th

executive order on interior enforcement and Secretary Kelly’s February 20th memo to you and

the other DHS agency heads?

ANSWER: Following Executive Orders 13767 and 13768 and the Secretary’s Implementation

Directions of February 20, 2017 the Chief of the U.S. Border Patrol and the Executive Assistant

Commissioner of the Office of Field Operations issued respective guidance that reiterated the

Secretary’s rescission of the November 20, 2014 memorandum entitled, “Exercising

Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children

and With Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent

Residents.” Additionally, this guidance reiterated the Administration’s enforcement policy that

criminal aliens have demonstrated their disregard for the rule of law and as such are a priority for

removal. CBP policy directs the referral for criminal prosecution of any alien whom our officers

and agents have a reason to believe has committed a criminal offense and directs the initiation of

removal proceedings against any alien who is subject to such removal under the Immigration and

Nationality Act.

Question 112b: Does CBP refer all apprehended cases to ICE regardless of whether an

individual presents a public safety threat?

ANSWER: OFO processes all applicants for admission at Ports of Entry (POEs) under Section

235 of the Immigration and Nationality Act (INA). Depending on the particular enforcement

action taken, an applicant for admission who has been found inadmissible may or may not be

referred to ICE Enforcement and Removal Operations (ERO). Under Section 235(b) of the INA,

an inadmissible applicant for admission who is subject to expedited removal, but who has not

expressed a fear of return, may be removed by CBP officers at a POE, or may be referred to ICE

to effectuate their removal, where additional coordination is required. Aliens who are permitted

to withdraw their application for admission, pursuant to section 235(a)(4), are also generally not

referred to ICE ERO.

Under Section 235(b)(1) of the INA, inadmissible applicants for admission who are subject to

expedited removal, but who express a fear of return, are referred for a Credible Fear interview

and must be referred to ICE ERO for detention.

U.S. Border Patrol processes all aliens arrested between the ports of entry according to policies

and procedures set forth by law and agency regulations (Immigration and Nationality Act

Sections 287, 240, and 235, Border Patrol Handbook, and M-68). Aliens apprehended between

the ports of entry who are subject to expedited removal and who have not expressed a fear of

return may be removed without a referral to ICE. Under Section 235(b)(1) of the INA,

inadmissible applicants for admission who are subject to expedited removal, but who express a

fear of return, are referred for a Credible Fear interview and are referred to ICE ERO. Adults,

family units, and unaccompanied alien children all require specific needs for detention and

processing which are followed by all BPAs and their supervisors.

Additionally, CBP officers and agents will take enforcement action against all aliens encountered

in the course of their duties who enter illegally or who do not have a lawful status to remain in

the United States. Such action includes the arrest or apprehension of aliens whom CBP has

reason to believe have entered or who remain in the United States in violation of immigration

laws. Such action also includes the referral for criminal prosecution of any alien whom CBP has

reason to believe has committed a criminal offense, and the initiation of removal proceedings

against any alien who is subject to removal under any provision of the INA. CBP officers and

agents coordinate with ICE/ERO for referrals for detention.

Question 113: CBP has authority to stop and question individuals within 100 miles of the

border. CBP also sets up checkpoints and conducts roving patrols where many times lawful

residents and U.S. citizens are subjected to racial profiling and harassment. What have you done

or how will you ensure individuals are not subjected to racial profiling or other impermissible

profiling? Please include details in your response about whether there have been CBP trainings

and/or data collection reforms in response to the Department of Justice's December 2014

Guidance for Federal Law Enforcement5.

ANSWER: CBP is committed to the fair, impartial and respectful treatment of all, and has

memorialized its commitment to nondiscrimination in existing policies, including the February

2014 CBP Policy on Nondiscrimination in Law Enforcement Activities and all other

Administered Programs. This policy was developed to implement DHS Policy on

Nondiscrimination in Law Enforcement Activities and all other Administered Programs and

prohibits the consideration of race or ethnicity in law enforcement, investigation, and screening

activities, in all but the most exceptional circumstances. To further implement CBP/DHS Policy,

CBP took the following actions:

o Initiated an antidiscrimination awareness campaign through payroll notice statements, the

IDS, and the CBPnet;

o Developed and delivered muster module for enforcement personnel on anti-profiling in

security screen and enforcement activities; and

o Coordinated with the Office of Training and Development (OTD) to update training

material for law enforcement personnel.

CBP’s Standards of Conduct further highlights CBP’s prohibition on bias-motivated conduct and

explicitly requires that “Employees will not act or fail to act on an official matter in a manner

5 Fact Sheet: U.S. Department of Justice Racial Profiling Guidance, December 8, 2014, https://www.dhs.gov/news/2014/12/08/fact-sheet-us-department-justice-racial-profiling-guidance

https://www.dhs.gov/news/2014/12/08/fact-sheet-us-department-justice-racial-profiling-guidance

which improperly takes into consideration an individual’s race, color, age, sexual orientation,

religion, sex, national origin, or disability, union membership, or union activities.”

The use of race and ethnicity information in violation of this policy may subject CBP employees

to discipline under the Standards of Conduct.

Question 114a: Press reports indicate that Border Patrol agents detained Rosa Maria

Hernandez, a ten-year old child with cerebral palsy after an emergency surgery. CBP agents

reportedly stopped the ambulance at an interior border checkpoint on October 24, 2017 as it was

travelling from Laredo, Texas, to Driscoll Children's Hospital in Corpus Christi. Following Rosa

Maria’s surgery, federal agents took her into custody and placed her in a San Antonio detention

facility.

Is it the policy of CBP to routinely detain ambulances?

ANSWER: No, it is not the policy of CBP to routinely detain ambulances. U.S. Border Patrol

sectors and stations routinely work with medical providers and emergency transportation

companies to coordinate an expedited inspection when provided advanced notice. These actions

are conducted with strict adherence to policy and regulations found in, but not limited to the

Border Patrol Handbook and local agreements guided by national policy.

Many press reports regarding the Rosa Maria Hernandez encounter have been inaccurate. Rosa

Maria was traveling in white sedan with an adult male driver and adult female passenger. Agents

subsequently determined that Rosa was an “unaccompanied alien child” (UAC), since she (a)

had no lawful immigration status, (b) is under the age of eighteen, and (c) had no parent or legal

guardian in the United States available “to provide care and physical custody.”

The William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (TVPRA)

provides certain protections for vulnerable minors, including requiring agencies to promptly take

steps to notify the Office of Refugee Resettlement (ORR) of the U.S. Department of Health and

Human Services (HHS), and erring on the side of involving ORR for the protection of the minor.

Indeed, the TVPRA leaves no discretion for any federal agency to decline to turn over a UAC in

its custody to ORR, or to otherwise transfer custody of that UAC to any individual or entity other

than ORR. Thus, once CBP determined that Rosa Maria’s parents were not present and would

not appear to take custody of her, and therefore that she was a UAC, CBP was obligated by law

to transfer her into the custody of ORR.

Question 114b: Does CBP consider an ambulance a “sensitive location” as outlined in the 2011

memorandum entitled “Enforcement Actions at or Focused on Sensitive Locations”?

ANSWER: During any law enforcement operation, preservation of life and the safety of the

public are the first considerations. Although an ambulance is not considered a sensitive location

per our current policy, and USBP has seen various methods of smuggling through checkpoints to

include emergency vehicles, common carriers, commercial vehicles, etc., CBP understands the

nature and sensitivity of legitimate emergency medical service vehicles traveling through USBP

checkpoints. It is CBPs policy and practice that we should endeavor to assist other agencies

when possible, and close coordination with emergency medical services and local hospitals is

key to ensuring that both CBP and other agencies continue to operate effectively and efficiently

to accomplish their missions, especially in regard to providing lifesaving medical treatment of

any person that CBP might encounter.

Question 114c: Should you be confirmed, how will you instruct CBP agents with regard to the

treatment of ambulances?

ANSWER: USBP sectors and stations routinely work with medical providers and emergency

transportation companies to coordinate an expedited inspection when provided advanced notice.

These actions are conducted with strict adherence to policy and regulations found in, but not

limited to the Border Patrol Handbook and local agreements guided by national policy. If

confirmed, I will work to ensure that CBP’s policy is effectively communicated to partner

emergency responders in affected areas. CBP will continue to take the appropriate enforcement

actions, but will continue to coordinate to ensure that no such action impedes the legitimate

medical treatment or lifesaving efforts of local emergency medical services, traveling through

USBP checkpoints.

Question 114d: The 2011 memorandum “Enforcement Actions at or Focused on Sensitive

Locations” includes hospitals in its definition of a “sensitive location”. Please explain why that

guidance was violated in Rosa Maria’s case.

ANSWER: Enforcement actions were not conducted at a sensitive location, which in this case

was Driscoll Children’s Hospital. The unaccompanied child was encountered and taken into

custody at an immigration checkpoint—a CBP operational location—and was already in Border

Patrol custody when she was escorted to the hospital so that she could receive her scheduled

medical care. Because no parent or guardian of Rosa Maria was present at either the checkpoint

or hospital, and no parent or guardian of Rosa Maria contacted Border Patrol during this time,

CBP reasonably determined that Rosa Maria was a UAC at the time she was encountered at the




Question 114e: How many agents were present during the escort of Rosa Maria to the hospital,

during her surgery and recovery, and during her detention and transfer to San Antonio?

ANSWER: Agency policy requires two (2) agents are present.

Question 114f: Does CBP consider the medical needs of minors when making determinations

regarding detention?

ANSWER: CBPOs and Agents take every action necessary to ensure the safety and welfare of

individuals in our custody, and adheres to the requirements of Federal law, regulation, and

policy, including the TVPRA.

Question 115a: In the past 10 years, our government has spent more taxpayer dollars on border

security than at any other point in its history. Since 2000, the U.S. Border Patrol budget has

increased by 245 percent. At the same time, apprehensions are at lows not observed since the

1970s.

Should Congress take greater account of the evolving border dynamics when assessing if money

should be spent on a border wall and additional border patrol agents?

ANSWER: The border environment is dynamic, and the threat situation is driven by adversary

actions and is constantly in flux. CBP must be afforded flexibilities to remain agile to respond

appropriately based on current mission needs and resourced to address capability gaps.


and road access, surveillance technology, response capability and personnel. The U.S. Border

Patrol maintains a Capabilities Gap Analysis Process that begins with input from the sector level,

and has identified the necessary capabilities to secure the border. The four key Master

Capabilities are: Domain Awareness, Impedance and Denial, Access and Mobility, and Mission

Readiness.

A significant portion of the success we have realized over the last decade and a half can be

attributed largely to increased deployment of impedance and denial infrastructure. Border wall

provides an important and enduring capability to impede or deny illegal crossings in those areas

where it is applied, as demonstrated in San Diego, Tucson, El Paso, and Yuma Sectors, but it is

not effective alone, and is not an appropriate solution for every area of the border. It is most

effective where there are populated areas near the line on the U.S. side of the border, where

illegal crossers can vanish within residential and commercial areas.






USBP will continue to utilize the Capabilities Gap Analysis Process to identify mission needs

and offer courses of action to fill gaps – impedance, technology, people – or a balance of all

three depending on available resources. We will build wall where it is prudent and effective and

the design will change based on the environment and operational needs. We will deploy

technology to produce domain awareness of illegal criminal activity exposing our citizens to risk.

We will increase the hiring and deployment of new and relocate existing agents to both areas of

increased threat and increased activity. A comprehensive view of all border threats, risks and

activity is essential.

The significant improvements in border security over the past 10-15 years are promising, and

reflect the benefits of sustained investment in border security capabilities based on operational

requirements, combined with the effective operational strategies applied by the US Border

Patrol, along with improvements in enforcement policies and consequence delivery. Despite

these improvements, we continue to see over 25,000 apprehensions of illegal crossings per

month between ports of entry, as well as increasing amounts of hard narcotics seizures. These

threats—over 830 people a day—include previously deported criminals, hardened smugglers

employed by ruthless cartels, and other potential security risks. It remains CBP’s responsibility

to effectively interdict and deter these crossings, in concert with immigration enforcement

partners and supported by appropriations and authorities from Congress as we strive toward

operational control, the effective deterrence or interdiction of all illegal crossings. The

impedance and denial capability provided by border wall remains an important component of

that effort.

Question 115b: By what specific metrics will you evaluate the effectiveness and fiscal

responsibility of various methods used for border security, including walls, fences, levees,

personnel at and between ports, aerostats, drones, and manned aircraft?

ANSWER: USBP conducts an annual Capability Gaps Analysis Process (CGAP) to identify

gaps and other trends between the ports of entry. Once the gaps have been identified, analyzed

and prioritized, USBP views these gaps through the lens of available resources including

personnel, persistent surveillance, and impedance & denial (i.e., wall) – to address those

threats. The time to procure and available funding shape the immediate response, while we

address the long-term strategic needs. We use metrics like the Interdiction Effectiveness Rate6

and State of the Border risk analysis to guide and shape the balancing of resources to meet the

actions of the extremely nimble transnational criminal organizations. “Operational Control” of

the border, as directed by both the Secure Fence Act of 2006 (8 U.S.C. 1701) and Executive

Order 13767 (Sec. 4)7, is an additional metric that is used to guide our prioritized investment.

When balancing competing interests, DHS and CBP will use these and other specific

methodologies to identify and validate border control initiatives and investments.

Moving forward, we will include “Operational Control” of the border as an additional metric,

directed by both the Secure Fence Act of 2006 (8 U.S.C. 1701) and Executive Order 13767 (Sec.

4)8, to guide our prioritized investment. When balancing competing interests, DHS and CBP

will use specific methodologies to identify and validate border control initiatives and

investments.

Question 115c: Will you make this analysis public?

ANSWER: Annually, CBP makes many statistics and metrics available to the public and we

will continue to promote transparency where and when we can while protecting the men and

women defending the nation. The submission of many of these metrics and others to Congress is

required by statute as well.



sum of apprehensions and turnbacks, and dividing by the sum of apprehensions, turnbacks, and gotaways. 7 The Secure Fence Act and the Executive Order both define “operational control” as the “Prevention of all unlawful

entries into the United States.” 8 The Secure Fence Act and the Executive Order both define “operational control” as the “Prevention of all unlawful

entries into the United States.”

Question 116: A 2016 OECD report showed that nearly half a trillion dollars in global trade is

made up of counterfeited and pirated goods and that U.S. companies are the biggest victims,

falling prey to fully 20 percent of the knockoffs. The OECD also reported postal parcels are the

top method of shipping these fake goods, amounting to 62% of seizures from 2011 to 2013. Will

you commit to working with me to address this growing threat, and to make sure that CBP

devotes the resources necessary to combat the problem?

ANSWER: Yes, I can commit to working with you to address these enforcement issues, if

confirmed. CBP is committed to addressing the growing challenges in the mail and express

environments, particularly with respect to the opioid crisis and IPR violations. To that end, CBP

and the United States Postal Service signed an MOU on September 1st, 2017, outlining roles and

responsibilities between the agencies and better aligning out enforcement efforts. Additionally,

my staff and I have worked closely with the Postmaster General, Megan Brennan, and her staff

to cultivate a more robust relationship and enhance our ability to function in tandem. Including

the development of relevant legislation and outreach to international partners and world

organizations such as the Universal Postal Union to allow for the collection of advanced

electronic data or AED.

Furthermore, CBP is currently conducting special operations in the International Mail Facility

environments throughout the year focusing on IPR enforcement and we will continue to conduct

these operations. CBP is also looking to increase staffing at the International Mail Facilities to

help address the increased volume of shipments.

Question 117: Last Congress, various Senators as well as companies and industries expressed

concerns about duty evasion. We ultimately passed the Enforce and Protect Act to address those

concerns. We need to make sure that we’re fully and effectively countering duty evasion, and

that affected industries and workers are able to meaningfully participate in this process. Given

the importance of the Enforce and Protect Act to many Senators on this Committee, will you

work with us to ensure our concerns about duty evasion are addressed and that the law is fully

implemented so that domestic industry can participate actively in duty evasion investigations?

ANSWER: If confirmed, I can assure you that I will continue to work with you to detect and

deter duty evasion. Part of that effort will include CBP’s continued vigorous enforcement of the

Enforce and Protect Act (EAPA) which CBP has been effectively and dutifully implementing

over the past year. To date, CBP has initiated over 14 EAPA investigations, all of which have

resulted in interim measures. These investigations cover various products, including wire

garment hangers, wooden bedroom furniture, diamond sawblades, and oil country tubular goods

(steel tubing). The interim measures taken protect the revenue, such as providing cash deposits

on subsequent entries, suspending and extending liquidation of entries, rejecting entries

summaries that are within the reject period, as well as evaluating the continuous bond and

requiring single transaction bonds, as appropriate. In these investigations, the Trade Remedy

Law Enforcement Directorate has coordinated more than 10 foreign onsite verifications,

including two locations in Thailand and eight locations in Malaysia, among others, as well as

domestic onsite verifications and multiple cargo exams. The onsite verifications are crucial to

gather evidence of exporter production capability and capacity, to assess the information against

that provided in the allegations and CBP’s own research of the exporters and importers.


quickly formed a small cohesive investigative unit and completed its work well ahead of the

statutory deadline for interim measures. In that first investigation, CBP initiated a unique

investigative approach to obtain key information when the parties being investigated declined to

participate. CBP reached its determination on interim measures a month ahead of the statutory

deadline and issued its final determination to the parties to the investigation on August 14, 2017.

The notice explained that there was substantial evidence on the record that merchandise was

entered into the U.S. customs territory through evasion via transshipment of wire hangers from

China through Thailand. As a result of this enforcement effort, the alleger filed eight more

allegations and to date, these investigations alone have stopped the evasion of $33 million AD

duties annually.

Question 118: A recent article, citing a speech you gave in June, said that during a five-day

interagency operation at JFK Airport, CBP and its partner agencies found that 43 percent of

shipments inspected were non-compliant. As I understand it, these shipments were express and

mail shipments under the de minimis threshold – not traditional freight. While I agree that de

minimis shipments should come in duty-free, they should not be free from enforcement. How

does CBP plan to address the issue of inspecting express and mail shipments and ensuring that

all products sold in the U.S. – regardless of their value – comply with regulatory requirements

and do not infringe on U.S. companies’ intellectual property rights?

ANSWER: Everyday, millions of Americans make online purchases, often not realizing that

they are, in fact, importing. Since 2000, the number of Americans shopping online has increased

nearly fourfold, up from 22 percent to 79 percent. As the agency with physical control over U.S.

imports, CBP continues to adapt to the growth of de minimis shipments and imports through e-

commerce business to ensure a safe and secure trade system that supports the U.S. economy. To

address these evolving challenges, CBP officially established the E-Commerce and Small

Business Branch within the Office of Trade and directed it to develop and implement a new e-

commerce strategy. The developed strategic goals and objectives, will position CBP to address

the challenges in the e-commerce environment now and into the future. Additional intellectual

property rights (IPR) exams and special operations targeting the small package environment in

both express carrier environment as well as in international mail will help to address the critical

need to continue to focus on IPR enforcement. By strengthening the partnership with Homeland

Security Investigations at the National Intellectual Property Rights Center (IPRC), CBP will

direct targeting and operational resources to areas of greatest concern. CBP will also work with

the US Postal Service to increase the amount of advanced electronic data received from foreign

posts and work to identify emerging technologies that can provide enhanced inspection

capabilities of parcels.

Question 119: Mr. McAleenan, our domestic steel industry continues to face unfair and illegal

competition from counties like China, who not only export heavily subsidized products to the

United States and around the world, but have also engaged in state-sponsored cyber-enabled

economic espionage. These are not the actions of a nation respectful of market principles.

Unfortunately, the Commerce Department’s Section 232 investigation into imported steel and

aluminum has stalled despite repeated calls to take action by our steel industry, as well as me and

other members of Congress. This delay has made a bad situation worse – imports of steel are

now higher than they were last year as importers try to get product into the US before any

remedy order goes into effect. If Commerce and President Trump do eventually take action,

Customs will be tasked with enforcing such remedies, which is all the more critical given the

current surge in imports.

To what degree are you coordinating with Commerce, USTR and the White House to ensure

Customs is prepared to both enforce these import restrictions and also identify and address any

gaming or transshipment that may stem from these restrictions?

ANSWER: CBP has coordinated with the Department of Commerce and the International Trade

Commission (ITC) to be prepared to address technical implementation issues. CBP’s National

Targeting and Analysis Groups (NTAGs) are prepared to identify and address risks related to

“gaming” or trans-shipments that might occur to avoid these restrictions when implemented.

Question 120a: Nothing we ask you to do is simple or easy. You are on the front lines of

protecting our domestic industrial base from imports of illegally subsidized goods -- identifying

transshipped goods and properly imposing anti-dumping and countervailing duties are critical

components of those efforts.

ANSWER: AD/CVD Enforcement is a priority for CBP, and CBP aggressively pursues all

allegations and indications of evasion of anti-dumping and countervailing duty orders.


THE HONORABLE Robert Casey







Question 120b: Can you describe how the sophistication of these efforts have evolved?

ANSWER: AD/CVD evasion often involves sophisticated fraudulent activity that takes place

outside of the United States, including the creation of fraudulent information and documents that

are transmitted to CBP with the entry information. Goods are illegally transshipped to hide the

identity of the parties involved in the transaction. The countries that are used to facilitate the

illegal transshipment often vary. Parties also constantly look for and test potential loopholes in

complex AD/CVD requirements.

Question 120c: How have you and your agents responded to the evolving dynamics?

ANSWER: In order to verify and obtain proof of AD/CVD evasion, including illegal

transshipment, CBP employs document reviews, cargo examinations, scientific testing, audits,

and partnering with U.S. Immigration and Customs Enforcement (ICE) and foreign customs

authorities. When CBP identifies types of AD/CVD evasion that are potential criminal

violations, CBP refers issues to ICE and supports ICE criminal investigations. CBP also

partners with the U.S. Department of Commerce on AD/CVD enforcement, and works closely

with the trade to obtain market intelligence and commodity expertise. On an organizational

level, CBP has stood up ten Centers of Excellence and Expertise (Centers), which have a strong

focus on commodity-based AD/CVD orders and centralize AD/CVD activities for importers

aligned with the respective industry sector. The Centers are increasing uniformity and expertise

across CBP for the administration of AD/CVD entries and AD/CVD enforcement.

CBP has also been addressing evasion through implementation of the EAPA investigations. By

centralizing the EAPA investigations under the Office of Trade’s Trade Remedy Law

Enforcement Directorate (TRLED), CBP has been able to ensure that any concerns occurring in

the investigations are readily addressed, as well as to provide better communication and

coordination among the various units within CBP that are working these investigations.

TRLED, being at Headquarters is also better positioned to coordinate with other government

agencies, such as the U.S. Department of Commerce, as well as other foreign governments to

facilitate the exchange of information in these investigations.

Question 120d: Please also discuss any tools you have which are particularly helpful in

addressing these challenges, including those provided in the 2016 customs bill.

ANSWER: CBP takes an agency-wide approach to enforcing AD/CVD laws and utilizes

national assets and numerous tools from across the agency to enforce AD/CVD. The

combination of techniques and tools are targeted on the specific evasion schemes. CBP audits

are used in many cases of AD/CVD evasion, and in FY 2017, identified $27.1 million in

AD/CVD discrepancies with $2.2 million collected to date. The Enforce and Protect Act, which

was part of the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA) provided new

means for the trade to provide AD/CVD evasion allegations to CBP, and for CBP to pursue these

allegations, and is already proving effective. TFTEA also gave CBP new tools and impetus

around risk-based bonding. Finally, civil penalties provide a means to penalize and deter

AD/CVD evasion. In FY 2017, CBP levied 43 monetary penalties totaling over $253.6 million

on importers for fraud, gross negligence, and negligence for AD/CVD violations. CBP is also

applying law enforcement targeting, intelligence, and analytical techniques towards its trade

enforcement mission.

Question 121: In your view, what are the most significant challenges to you and your agency in

the area of trade enforcement in the coming years?

ANSWER: The most significant challenges to CBP in the area of trade enforcement come from

the dramatic changes ongoing in the global supply chain. The most prevalent is the dramatic

growth in e-Commerce and direct to consumer imports. E-Commerce is largely responsible for

the increase in the volume of small shipments entering the U.S. stream of commerce. As the

agency with physical control over U.S. imports, CBP must adapt to the growth of imports

through e-commerce business. The potential threat of harm to the public due to the challenges in

the e-commerce environment is real. From terrorist plots that have involved small packages to

the seizure of thousands of non-compliant goods with health and safety issues, CBP must

continue to address threats in e-commerce shipments to preempt such risks to the nation’s safety

and security.

The impact to our markets and U.S. manufacturers of global overcapacity of products, such as

steel from China, along with predatory market practices are two additional dynamics that create

major incentives for trade evasion and complicate detection and enforcement efforts. Further,

detection of forced labor in supply chains is challenging given limited visibility into second and

third tier suppliers to foreign manufacturers. With the authorities granted in TFTEA, a

commitment to use all of CBP’s law enforcement tools and expertise, and additional resources,

CBP will work to meet these challenges.

Question 122: In June, the Drug Enforcement Administration reported that 4,642 fatal drug

overdoses occurred in 2016 in Pennsylvania, a 37% increase from 2015. University of Pittsburgh

researchers analyzed a regional database and found that in 54% of the deaths, fentanyl was

among the drugs involved. In the last weekend of June, two Pennsylvania hospitals treated 51

patients for overdoses in 48 hours. Toxicology reports are pending, but investigators suspect the

drugs contain fentanyl or carfentanyl. It is clear that fentanyl and carfentanyl pose a serious and

increasing threat to ongoing efforts to curb the opioid crisis.

Do you agree that unlawful importation of fentanyl and synthetic fentanyls poses a growing

threat to the nation’s health and security?

ANSWER: I agree strongly; the seizure statistics, along with reports from law enforcement

partners and communities across the country, point to an area of growing concern. Within CBP,

we are taking active steps to address the unlawful importation of these substances. Increased and

sustained investments in our scientific infrastructure to detect and identify these substances will

support the containment of this risk. These investments will be utilized to plan and implement

capabilities to mitigate the immediate impact of fentanyls to users, their families, and their

communities.

The importation of fentanyl—and other synthetic opioids—will continue to pose a significant

threat to the nation’s health and security. Driven by the potential profits and growing demand,

transnational criminal organizations (TCOs) based in Mexico and small criminal groups in the

United States will likely seek to increase the amount of fentanyl they smuggle into the country.

We assess that Mexican cartels will attempt to expand their fentanyl operations and continue to

move low-concentration, multi-kilogram shipments across the SWB. At the same time, the

amount of low-weight/high-concentration fentanyl shipments arriving directly in the United

States via mail/express consignment operations will also rise. This smuggling method is

characterized by small criminal groups and individuals based in the United States whose ability

to leverage the internet—especially the “dark web”—allows them to obtain synthetic opioids

directly from overseas suppliers with relative ease and anonymity.

CBP’s National Targeting Center (NTC) is where advance data and access to law enforcement

and intelligence records converge to facilitate the targeting of travelers and items of cargo that

pose the highest risk to our security — in all modes of inbound transportation. The NTC takes in

large amounts of data and uses sophisticated targeting tools and subject matter expertise to

analyze, assess, and segment risk at every stage in the cargo/shipment and travel life cycles. NTC

leverages classified, law enforcement, commercial, and open-source information in unique,

proactive ways to identify high-risk travelers and shipments at the earliest possible point prior to

arrival in the United States and plays a key role in targeting the opioid supply. The NTC works

closely with interagency federal and international partners on joint initiatives aimed at targeting

the opioid supply chain.

CBP will also enhance its risk segmentation based on data analytics and data mining by

expanding an advanced data pilot in the international mail environment. Other efforts include

prioritizing targeting efforts to disrupt, degrade, and dismantle transnational criminal

organizations and illicit networks producing and distributing fentanyl and its analogues.

Question 123: As CBP Commissioner, what steps will you undertake to interdict fentanyl and

synthetic fentanyls from entering the United States?

ANSWER: According to provisional data from the Centers for Disease Control and Prevention,

in 2016, drug overdoses were the leading cause of accidental death in the U.S., with opioids

accounting for over 20,000 fatalities. Aligned with those increases, CBP has seen a sharp

increase in fentanyl seizures coming through our land ports of entry and through express

consignment and international mail facilities. In FY 2017, CBP’s Office of Field Operations

seized more than double the amount of fentanyl, a 153 percent increase.

Recognizing this trend and our critical role, in July 2017, I directed the development of a

comprehensive and integrated strategy to enhance CBP’s ability to target and interdict opioids

entering the United States. CBP will continue to arrest and interdict all persons and contraband

the entered into the U.S. illegally while conducting border security operation, as well as through

counter-network operations to target and interdict the organizations involved in the smuggling of

opioids at each node in the supply chain based on intelligence. I would also like to emphasize

that ensuring that CBP personnel are properly equipped to conduct these interdictions in a safe

and efficient manner must remain a top priority. To that end, CBP is working with partner

agencies to identify personal protective measures and testing equipment to ensure officer safety

while intercepting and accurately identifying fentanyl in the field.

CBP is focused on allocating internal resources to interdict fentanyl, in all forms, so as to prevent

them from entering the United States. CBP is also working with partner agencies to identify

personal protective measures and testing equipment to ensure officer safety while intercepting

and accurately identifying fentanyl in the field. CBP is the first federal law enforcement agency

in the United States to train canines to detect fentanyl. CBP currently has over 100 canines

trained to detect fentanyl and is planning to expand fentanyl training to existing teams that

operate in the border security environment as well as ensuring all new canine teams have the

ability to detect fentanyl.

CBP is also looking for new and innovative technology to presumptively identify fentanyl in the

field. The Field Triage Infrared Reachback program continues to be the most effective means to

presumptively identify new fentanyl analogues as it integrates virtual scientists with frontline

officers. Reachback scientists are able to interpret data and recognize threats even if the spectra

of these new threats do not exist in established libraries. Additionally, Gemini™ presumptive

testing devices have been deployed which is currently the only device on the market which is

able to utilize Raman and Fourier Transform Infrared Spectrometer (FTIR) technology for

presumptive identification purposes. CBP has procured 82 additional presumptive testing

devices which will be deployed to field offices nationwide. However, deployment will be

heavily focused on the mail/express courier operations and Southwest border.

CBP has conducted many successful special enforcement operations. These enforcement

operations have bolstered the interdiction of narcotics on the Southwest Border, international

mail and express courier facilities. Operation Hybrid II was conducted in Tucson, Arizona from

September 10-23, 2017. Operation Hybrid I was conducted in Laredo, Texas in May

2017. Operation Hybrid bolsters CBP Field Offices with personnel, intelligence, and equipment

to interdict hard drugs and other contraband being smuggled by pedestrians, privately owned

vehicles, commercial busses, and the Secure Electronic Network for Travelers Rapid Inspection

(SENTRI) Lanes. During Operation Hybrid I and II, Laboratory and Scientific Services (LSS)

deployed a mobile laboratory to perform more rigorous testing for the presence of fentanyl in

loads that were interdicted.

CBP also conducted Operation Crush in the express courier facilities in Memphis, Tennessee;

Cincinnati, Ohio; and Louisville, Kentucky from August 23-September 15, 2017. CBP

collaborated with other components and external agencies by leveraging enforcement, targeting,

investigations, science, and intelligence to identify and disrupt individuals smuggling hard

narcotics in the express courier environment. CBP will expand Operation Crush to international

mail facilities beginning with the Chicago and New York Field Offices.

In addition to our internal operations, CBP will continue international engagement to reduce the

supply chain in source countries through operational efforts and diplomatic engagement,

specifically with China, Mexico, and Central and South America. To address serious gaps in

information associated with fentanyl in Mexico, CBP conducted a fentanyl workshop focusing

on the Southwest border and Mexico in September 2017 in Tucson, Arizona. CBP is working

with representatives of Australia, Canada, New Zealand, and the United Kingdom to exchange

lessons learned, smuggling trends and best practices related to fentanyl. Subject Matter Experts

from the participating countries are working together to conduct focus meetings discussing

information such as officer safety, testing/detection, and substance analysis/exchange of spectra.

Lastly, I would note that CBP stands ready to assist Congress on legislative solutions to ensure

CBP and its federal partners are well equipped with the appropriate authorities, information

sharing, and resources to amplify our enforcement efforts and best address this emerging threat.

Question 124: Reports indicate that the terrorist group ISIS has sold cultural artifacts and

antiquities on the black market to help finance their operations in Iraq and Syria. In 2016, the

Protect and Preserve International Cultural Property Act became P.L. 114-151. I sponsored this

legislation in the Senate, which imposed restrictions on the import of cultural artifacts from Syria

and sought to improve interagency coordination in stopping black market antiquities from

entering the United States.

Do you believe that addressing the illegal import of cultural property into the United States,

especially if they can be traced back to terrorist groups, should be a priority for CBP?

ANSWER: Yes, CBP is committed to protecting cultural property, heritage, arts and antiquities

by developing and coordinating comprehensive U.S. border enforcement efforts, and working

closely with Immigration and Customs Enforcement, Homeland Security Investigations. To do

so, CBP coordinates with a host of domestic and international partners to combat illicit cultural

property through a variety of fora, at the strategic and tactical levels, to include the exchange of

intelligence, identification of anomalies, trends, and violations in the global supply chain to

target high-risk shipments and promote compliance. The main forum for CBP domestic

coordination with U.S. Government agencies is the Department of State-led Cultural Heritage

Coordinating Committee (CHCC), to include its several working groups, such as the Cultural

Antiquities Task Force (CATF), to which CBP shares situational awareness to all regarding

ongoing and planned CBP activities. In recent decades, the U.S. also has entered into

international agreements with other countries in an effort to limit the trafficking of artistic,

archaeological, and ethnological material. CBP enforces these agreements through collaboration

with other U.S. federal agencies, foreign governments and international organizations, e.g., the

World Customs Organization.

Question 125: If confirmed, will you commit to implementing PL 114-151 in a manner that

holds accountable those who would illegally import cultural artifacts while allowing the legal,

legitimate trade in cultural property to continue?

ANSWER: CBP aggressively enforces existing U.S. import restrictions on trafficked cultural

property, art and antiquities (CPAA), to include enforcing Pub. L. 114-151; effecting seizures of

trafficked cultural property attempted to be imported to, exported from or trafficked through the

United States in violation of law; pursuing civil administrative penalties against violative parties;

and supporting Department of State repatriation of trafficked antiquities to the rightful countries

of origin. In order to monitor and detect high risk activity, and specifically to pinpoint illicit

cultural property, CBP uses predictive analysis to identify suspicious importations, leverages

actionable intelligence obtained through partner government agencies and industry collaboration

to identify high-risk transactions and performs national targeting to identify high-risk

transactions.

In the process, CBP also actively supports criminal investigations by ICE Homeland Security

Investigations (HSI) of the trafficking of antiquities for sale in the United States, e.g., by

conducting data analysis, targeting, examinations, joint enforcement operations at and beyond

the border and referring interdictions of cultural property to ICE HSI for investigative

consideration. This close coordination also assists ICE HSI with the identification, arrest, and

conviction of criminals and associated transnational criminal organizations responsible for illicit

antiquities trafficking.

Question 126: If confirmed, will you report to this committee on CBP’s seizures of cultural

artifacts pursuant to PL 114-151?

ANSWER: Yes, CBP routinely tracks and conducts after-action analysis of cultural property

seizures, in part to inform its related risk analysis efforts, and is readily able to report to the

committee regarding DHS seizures of cultural artifacts, both those of CBP and ICE. As CBP

works closely with ICE during the cultural property interdiction, detention and seizure process in

most instances, the CBP reporting and attribution of cultural property seizures typically is at the

departmental level, viewed as a collaborative CBP and ICE effort. After CBP detains cultural

property, CBP contacts ICE so that ICE may conduct a preliminary investigation to determine

whether the detained property is in violation of and imported contrary to law. CBP also requests

that ICE locate and identify an appropriate subject matter expert to examine the property to make

a preliminary determination regarding the authenticity of the artifact or object. By routinely

collaborating with ICE, CBP is able to combat criminal organizations that traffic in illicit cultural

property and conduct coordinated ICE/CBP enforcement operations at and beyond the border.

Question 127: What additional resources, training, or authorizations do you believe CBP

Officers need to effectively apply PL 114-151 and other relevant statutes?

ANSWER: Pursuant to the Trade Facilitation and Trade Enforcement Act of 2015 (Pub. Law

No: 114-125), Section 606, CBP is mandated to train its personnel regarding the enforcement of

illicitly trafficked cultural property, archaeological or ethnological materials. CBP continues to

work in conjunction with its partner government agencies, ICE, Department of State and the

Smithsonian Institute, to rapidly expand and pursue greater awareness and education throughout

CBP of cultural property, arts and antiquities theft and illicit trafficking; to increase the number

of trained resources dedicated to cultural property protection; and to ensure a sufficient cadre of

CBP personnel nationwide with expertise devoted to targeting and processing cultural property

cases.

Question 128a: President Trump’s proposed wall would be extremely costly and would require

the federal government to confiscate private lands. It would also likely involve numerous legal

challenges, environmental damage, and expensive ongoing maintenance. While President

Trump has insisted that the cost of the wall would be around $12 billion, a DHS report released

earlier this year estimates the cost at $21.6 billion, not including maintenance.

What are the costs of building a wall along the entire southern border – both in terms of price

and its effect on trade?

ANSWER: At this time, CBP cannot provide a total cost for border wall construction. CBP is

currently developing a comprehensive assessment of potential requirements for border wall as

part of the Border Security Improvement Plan required by the FY 2017 Omnibus. That said, the

Southwest border is a dynamic environment and each mile of border requires a tailored solution.

Costs will vary depending on the type of barrier required by the terrain, traffic, and threats.

We do not anticipate that the construction of a border wall will impact on the flow of commerce

at our ports of entry and have not historically seen impacts to trade with past infrastructure

investments. In fact, we continue to make significant progress with our Mexican partners to

facilitate cross border trade and on August 23, 2017, CBP and Mexico Customs (SAT) signed a

“Memorandum of Understanding” (MOU) regarding “Unified Cargo Processing” (UCP). UCP

is a program which allows for joint inspections (either inbound or outbound operations) by CBP

personnel with foreign Customs personnel on U.S. soil.

SAT currently lacks the infrastructure in Mexico to process all the cargo and UCP allows for a

single operational location. Instead of trucks carrying cargo making multiple stops, in both

Mexico and the United States, UCP allows for a single streamlined inspection that reduces wait

times significantly and enhances security. It also fosters information exchange on customs and

security issues with Mexican Customs. UCP with SAT is operational at the Laredo (Truck, Air,

and Rail cargo), Rio Grande City (Truck Cargo), Texas; Nogales (Truck and Rail Cargo),


THE HONORABLE Michael Bennet







Douglas, (Truck Cargo), San Luis (Truck Cargo), Arizona; and Calexico (Truck Cargo),

California, Ports of Entry. CBP is in discussion with SAT on potential UCP expansion to El

Paso, Columbus, Santa Teresa, Brownsville, Progresso, Pharr, Eagle Pass, Otay Mesa, Tecate,

Phoenix, and Port Fouchon (Ocean Cargo) Ports of Entry. These potential UCP locations will be

jointly determined by CBP and SAT based upon operational impact, available personnel, and

available space.

The UCP has helped reduce truck crossing wait times. Some trucking companies reported to

CBP that they have seen the crossing time reduced from 3 hours to around 30 minutes.

Question 128b: What metrics will you use to evaluate the cost effectiveness of various methods

to secure the border?

ANSWER: USBP conducts an annual Capability Gap Analysis Process (CGAP) to identify gaps

and other trends between the ports of entry. Once the gaps have been identified, analyzed and

prioritized, USBP views these gaps through the lens of available resources including personnel,

persistent surveillance, and impedance and denial (i.e., wall) – to address those threats. The time

to procure and available funding shape the immediate response, while we address the long-term

strategic needs. We use metrics like the Interdiction Effectiveness Rate9 and State of the Border

risk analysis to guide and shape the balancing of resources to meet the actions of extremely

nimble transnational criminal organizations. “Operational Control” of the border, as directed by

both the Secure Fence Act of 2006 (8 U.S.C. 1701) and Executive Order 13767 (Sec. 4)10, is an

additional metric that is used to guide our prioritized investment. When balancing competing

interests, DHS and CBP will use these and other specific methodologies to identify and validate

border control initiatives and investments.

Moving forward, we will include “Operational Control” of the border as an additional metric,

directed by both the Secure Fence Act of 2006 (8 U.S.C. 1701) and Executive Order 13767 (Sec.

4)11, to guide our prioritized investment. When balancing competing interests, DHS and CBP

will use specific methodologies to identify and validate border control initiatives and

investments. These requirements will be further justified in the President’s annual budget

request as we move forward.

Question 128c: Would this include walls, fences, personnel at and between ports, aerostats,

drones, and manned aircraft?

ANSWER: Yes; we will evaluate our success on achieving operational control based on the

effectiveness of our multi-layered approach supported with all of the aforementioned resources.

Layering resources strategically enables the U.S. Border Patrol to detect, identify, classify, and

track persons entering the U.S. illegally between the POEs and effect the appropriate response



sum of apprehensions and turnbacks, and dividing by the sum of apprehensions, turnbacks, and gotaways. 10 The Secure Fence Act and the Executive Order both define “operational control” as the “Prevention of all

unlawful entries into the United States.” 11 The Secure Fence Act and the Executive Order both define “operational control” as the “Prevention of all

unlawful entries into the United States.”

and resolution to secure our nation’s borders. This approach utilizes manpower, technology, and

tactical infrastructure deployed in areas of greatest risk to ensure the highest degree of success. A

constant cycle of conducting intelligence analysis, capability gap analysis, and mission analysis

ensures that resources are providing the expected results, or need revisiting.

Question 128d: Will you commit to making this analysis public?

ANSWER: Annually, CBP makes many statistics and metrics available to the public and we

will continue to promote transparency where and when we can while protecting the men and

women defending the nation. The submission of many of these metrics and others to Congress is

required by statute as well.

Question 129a: A few months ago, I was in Mexico visiting officials regarding our bilateral

relationship. In addition to border security, we discussed the heroin and opioid crisis and the

changing nature of the drug flow to the United States. As much as 94% of the heroin entering

America comes through Mexico. Fentanyl is also entering America through Mexico from places

like China. And labs in Mexico are using precursor chemicals that are smuggled into the country

to produce fentanyl. One expert told us that not only can a large amount of heroin fit into

luggage, but compared to other substances, it is difficult to trace.

Given this, what are the challenges facing your agents on the front lines in tracking the flow of

drugs across the border?

ANSWER: Mexico is the United States’ third biggest commercial partner. The border between

the United States and Mexico remains the world’s busiest land border with both legitimate trade

and travel and smuggling endeavors. Mexican drug trafficking organizations (DTOs) are poly-

drug organizations that traffic heroin, methamphetamine, synthetic drugs, cocaine, and marijuana

throughout the United States. DTOs use established transportation routes and distribution

networks controlling drug trafficking routes across the Southwest Border (SWB). Mexican

DTOs exploit the large volume of pedestrian, cargo, and vehicular traffic to smuggle drugs

across the SWB by every imaginable means.

Some of the challenges our officers must overcome is that our enhanced border enforcement

posture at the POEs has forced DTOs to find new and innovative smuggling methods. To

address these unique challenges, OFO is currently implementing Special Enforcement

Operations designed to identify and disrupt drug smuggling at a POE through adaptable,

intensified, and multi-layered narcotics smuggling operations over a designated period. CBP

realizes effective risk management requires working closely with many federal, state, and local

enforcement partners in a “whole-of-government” approach. This approach will help us address

gaps in intelligence and improve risk management and enforcement actions.

CBP has made significant investments and improvements to our drug detection and interdiction

technology and targeting capabilities. CBP utilizes non-intrusive inspection technology for the

inspection and presumptive testing of unknown substances to immediately identify narcotic

substances, to include Fentanyl.

Question 129b: What additional tools do you need to stop those drugs from entering the U.S.

market?

ANSWER: As America’s unified border agency, CBP has a critical role in the nation’s efforts

to keep fentanyl and other dangerous drugs out of the hands of the American public while

ensuring safety of CBP’s frontline officers. CBP is working with partner agencies to identify

presumptive testing equipment and personal protective measures to ensure officer safety while

intercepting and accurately identifying fentanyl in the field. CBP has evaluated and deployed

systems to enhance interdiction rates while delivering training to officers and agents. CBP

continuously analyzes fentanyl trafficking routes and interdiction rates across U.S. POEs to

identify the most appropriate requirements and equipment to detect, identify, and interdict these

dangerous drugs. CBP’s current efforts include:

Expanding CBP’s naloxone program to locations where opioids may be handled by CBP

personnel to ensure officer and agent safety.

Developing and implementing training to ensure officers and agents are aware of the

risks involved with these drugs and understand how to handle them.

Expanding CBP’s Laboratories and Scientific Services Directorate (LSSD) capacity to

provide 24x7 reachback support to officer and agents in the field.

Implementing a mobile laboratory capability at additional field locations.

Procuring sophisticated laboratory equipment that can be used to analyze narcotics

seizure.

Procuring and deploying field testing equipment technology.

Question 130a: Customs and Border Protection has guidance meant to limit routine

immigration enforcement in sensitive places such as schools, hospitals, and churches. Yet, earlier

this year, undocumented immigrants were arrested leaving an overnight shelter program at a

church in Virginia.


THE HONORABLE Mark Warner







What is your approach to enforcement in sensitive locations, including hospitals, schools, and

churches?


this time. I fully support our officers and agents’ efforts to enforce the laws of the United States

through their dedicated efforts in the field. Our policy has protective measures for certain

locations to ensure that the interruption of daily lives of most Americans is reduced to the


Question 130b: Do you believe there are any areas that should be off limits to enforcement

actions? Do you plan to ensure that sensitive locations remain protected?

ANSWER: CBP’s priority mission is to keep terrorists and their weapons from entering the U.S.

CBPOs and Border Patrol Agents enforce all applicable U.S. laws, including against illegal

immigration, narcotics smuggling and illegal importation. Inevitably, enforcement actions and

investigative activities may, at times, lead to an apprehension at or near community locations or

establishments which have been deemed as sensitive locations. CBP policy does not preclude its

Officers and Agents from conducting enforcement actions at or near these locations, but directs

that careful consideration be undertaken, including consultation with supervisors where

appropriate. In all cases, Agents and Officers are expected to exercise sound judgment and

common sense while taking appropriate action, and exigent circumstances requiring an Agent or

Officer to enter a sensitive location must be reported immediately to ensure visibility and

oversight. CBPOs and BPAs do not actively patrol or station themselves outside of locations

deemed sensitive under CBP policy.

Question 131: One issue highlighted to me by community leaders in Virginia is the difficulty

they face in getting clear guidance on the Administration’s policies on immigration.

Would you commit to holding a field office meeting with community leaders in Virginia?

ANSWER: Yes. In October, I met with a number of non-governmental organizations from

around the country to discuss some of these very issues and I would be happy to have our

personnel that oversee CBP activities in Virginia meet with community leaders and answer any

question that fall within our agency’s purview. My Assistant Commissioner for Congressional

Affairs will coordinate with your staff to arrange a meeting.

Question 132a: The Administration has called for the hiring of 5,000 additional Border Patrol

Agents – an approximately 25% increase. Achieving this level of hiring will be difficult for a

number of reasons – including the fact that we currently have fewer agents that authorized

statutory levels. I’m concerned that we’re risking security to speed up this process.

Has the Department conducted a recent independent analysis of current workforce needs?

ANSWER: USBP continues to refine its staffing methodology to determine its requirements to

conduct border enforcement operations. USBP is currently working on the Personnel

Requirements Determination (PRD). This decision tool will support a staffing model with expert

field input and a combination of existing data and field input. Absent this decision tool and

corresponding staffing model, USBP utilized existing apprehension data and effectiveness ratios,

as well as hours spent patrolling the U.S. border. This information, combined with decision-

maker judgement and experience, allows for both quantitative and qualitative analysis to

ultimately inform the proposed increase for additional personnel. The PRD will answer: (1)

what conditions and workload are significantly related to current staffing levels; (2) what do

SMEs say are the current, minimal, optimal, and OPCON levels for staffing and what evidence

exists to support these estimates; (3) what would be the optimal distribution of additional BPAs

across sectors and stations based on operational conditions; and (4) as conditions and workload

change, what are the effects on staffing requirements by sector, station, and zone.

Question 132b: A CBP spokesperson noted that CBP has shortened the hiring process from 18

months to 5 months. Is this accurate?

ANSWER: Yes, CBP has worked tirelessly to streamline the hiring process and saw a 65

percent reduction in the time to hire from a high watermark of 469 days in January 2016 to a

current average of 160-165 days through hiring hubs where we are able to streamline many of

those processes. In 2015, CBP launched its hiring hub pilot program to resolve difficulties in

scheduling and coordination among various agency components compressing several months’

worth of processing steps into just a few days. In FY 2017, CBP incorporated lessons learned

from the hiring hub program into a new expedited hiring process that is now being used for all

frontline applicants.

Question 132c: If so, where did the time savings come from?

ANSWER: The majority of the time savings came from reducing internal bottlenecks and

improved scheduling capabilities. It’s important to note that CBP’s end-to-end reengineering of

the frontline hiring process included more than 40 process improvement initiatives implemented

since 2015. In addition to the aforementioned hiring hub model, CBP also implemented several

other process improvements to streamline the process, add capacity, enhance the use of

technology, and leverage advanced data analytics.

Question 133a: Estimates show that the construction of a physical wall along the Southern

border could total at least $22 billion, which the American taxpayer would have to pay for. As I

communicated to the U.S. Department of Homeland Security in April, I’m concerned about the

Administration’s proposals to divert money from TSA and FEMA programs that are currently

protecting U.S. citizens.

How will CBP prioritize protecting our national security at all of our borders?

ANSWER: CBP uses risk management to inform long-term planning and resource decisions,

which subsequently enable CBP to enhance operations and achieve the agility that it needs to

detect and respond to threats in the border environment. In assessing risk at and between the

POEs, CBP emphasizes a threat-based approach that identifies and evaluates threats enabling

CBP to prepare, respond, and resolve any border encounter or threat more effectively.

CBP’s risk-based approach to investing and guiding operational activity has improved U.S.

border security over the last decade. For example, the number of apprehensions between the

POEs has been a useful surrogate for the total number of people attempting to cross the border

illegally. Overall, the apprehension numbers have trended downward as CBP has applied

capabilities and new investments to increase border security. Apprehensions have dropped in

locations where CBP has applied more resources. CBP also utilizes a risk-based approach to

support the expansion of Preclearance operations. Airports interested in the program are

evaluated and prioritized against core requirements for Preclearance expansion, which include

national security benefit to the United States, travel facilitation benefit, feasibility, and strategic

impact.

Financial resources are not always sufficiently available to support all desired border security

initiatives. When fiscal constraints arise, CBP’s risk management approach enables a tailored

mix of resources that provides the highest possible levels of border security across all the U.S.

border environments that CBP is charged with securing.

To ensure the appropriate mix of resources, CBP continuously develops and enhances

governance and business processes to facilitate risk-informed decisions. At the enterprise level,

CBP is enhancing its performance management processes so that programs, investments, and

acquisitions will be measured for reaching the desired outcomes. CBP is incorporating

intelligence and risk-management principles into its planning, programming, budget, and

accountability (PPBA) business process. Incorporating intelligence and risk management into

PPBA enables decisions to be more well-informed and risk-based.

CBP has also looked to find innovative solutions working with private partners to ensure that we

are able to meet operational demands. The permanent authorization of a public private

partnership pilot that began in 2013 is a testament to this. Under the reimbursable services

program, we have been able to bridge the gap between services CBP is able to provide through

appropriated levels of funding and level of services desired by stakeholders. Many of the RSP

stakeholders have been able to realize business goals such as decreased wait times for travelers,

increased volume of travelers and trade, as well as processing of travel and trade outside normal

port hours.

Question 133b: Do you agree that sacrificing funding for these crucial programs in order to

build a physical wall could hamper our national security?

ANSWER: I recognize that homeland security and meeting the challenge to secure our nation’s

borders cannot be met through one single entity or approach alone. CBP is responsible for

establishing and justifying its own operational requirements, while the Department and the

Office of Management and Budget are responsible for balancing these requirements against the

other operational priority requirements and availability of finite resources.

Question 134: For states like Florida that have major ports and airports handling large amounts

of international travelers and commerce, it is critical that we have sufficient CBP Officers to

quickly move people and goods. This has been expressed to me time and time again, most

recently by Orlando International Airport, as well as ports throughout my state. Will you commit

to prioritizing resources to ensure that states like mine have the port officers they need?

ANSWER: I recognize your concerns specific to FL staffing, and would emphasize that I am

committed to ensuring all of our ports of entry are appropriately resourced to adequately address

increases in trade and travel. I will remain focused on having the right mix of resources at and

between our nation’s POEs. As the CBP mission continues to evolve to meet the threat to the

nation and facilitate legitimate trade and travel, we must continually assess personnel staffing

requirement.

Currently, CBP utilizes its Workload Staffing Model (WSM) to ensure CBPO staffing resources

are aligned within the existing threat environments, while maximizing cost efficiencies. The

WSM is a data-driven model that incorporates the most recent year’s workload data to determine

staffing requirements and considers factors for future facility enhancements and projected

volume growth in cross-border commercial and passenger traffic. Updated WSM results

continue to show a need for additional OFO capability to fully meet the standards set by statute,

regulation, and CBP policies, assuming maintenance of current processes, procedures,

technology, and facilities. The most recent results – factoring in the additional 2,000 CBPOs

funded by the FY 2014 Omnibus – show a need for 2,516 additional CBPOs through FY 2018.

The Administration’s submission of the updated 2017 WSM demonstrated an important

commitment to the requirements it identified, as did the statement of intent in the President’s

FY18 Budget to submit proposals for authorizing language that would provide user fee funding

to address the gap as we have in past years.


THE HONORABLE Bill Nelson










CBP has worked aggressively over the past several years to implement a multifaceted





workforce. Staffing the frontline with well-qualified individuals of the highest integrity remains

a top priority for CBP.














Cross-Border Trade Enhancement Act of 2016 (P.L. 114-279).




and over 1.1 million personal and commercial vehicles. In 2017, CBP tentatively selected 64

stakeholders across 54 ports of entry for participation in the RSP (34 air POEs, 4 for air and sea

POEs, one for land POE, and 15 for sea POE). To date the CBP Donations Acceptance Program

(DAP) has approved 17 donation proposals totaling $150 million in planned public and private

sector investment in U.S. POEs and important CBP initiatives. Ten of the 17 proposals have been

approved since enactment of the Cross-Border Trade Enhancement Act in December 2016, while

the others were approved under a predecessor pilot authority provided by Congress. The ten

DAP projects range from infrastructure improvements, partnerships for the provision of

biometrics services and data and donations of luggage for canine training purposes. Partnerships

entered into under DAP have and will continue to enhance border security and promote the safe

and efficient flow of passenger travel and commercial trade.

CBP continues to see a steady stream of applications for new agreements under this legislation,

so while recent results have been very encouraging, continued growth and expanded utilization

of this program is expected to allow CBP to approve new and enhanced services, which could

not be provided without the Cross-Border Trade Enhancement Act.

Question 135: A number of reports allege that CBP officials are not following the legal process

for people seeking political asylum who arrive at our borders. There are reports that asylum

seekers have been turned away by Border Patrol agents without an opportunity to present their

asylum claims. This is particularly concerning as Venezuelans flee a political, humanitarian, and

economic crisis that is worsening by the day and Cubans continue to seek shelter from a

repressive Castro regime. Will you commit to making sure that asylum seekers are not turned

away at the border?

What steps will you take to make sure your agents are actually following CBP policies on the

ground?




legal international obligations for the protection of vulnerable and persecuted persons. The laws

of the United States, as well as international treaties to which we are a party, allow people to

seek asylum on the grounds that they are being persecuted outside of the United States because

of their race, religion, nationality, membership in a particular social group, or political opinion.

CBP understands the importance of complying with these laws, and takes its legal obligations

seriously. Accordingly, CBP has designed policies and procedures based on these legal

standards, in order to protect vulnerable and persecuted persons in accordance with these legal

obligations. All CBP officers must comply with all law and policy, and appropriate disciplinary

action may be taken against those who do not.

All complaints against officers or agents, regardless of the mode through which they are

received, are recorded and investigated, and appropriate action is taken against CBP employees

who are found to have violated agency policy. Additionally, CBP’s Office of Professional

Responsibility (OPR) has been actively engaged with Non-Governmental Organizations (NGOs)

to identify and investigate incidents alleging that persons were prevented or discouraged from

making claims of fear to CBP.

Additionally, both Border Patrol Agents (BPAs) and Customs and Border Protection Officers



training and the periodic issuance of memoranda and musters. CBP also issues periodic

guidance to the field reminding CBPOs and BPAs of their legal obligations towards those who

express a fear of return.

Question 136: There is an epidemic in my state of Florida, and that is the opioid crisis.

Overdose deaths from heroin and fentanyl are hitting record levels. A lot of it is coming in from

China, and last week the Justice Department indicted a big drug trafficking ring, including some

folks in Florida. This is a start, but what we need is a comprehensive approach, as well as

sufficient resources to truly fight this epidemic. I’ve supported additional funding that’s already

reaching local communities, and this week I cosponsored legislation to boost that funding even

more. What specifically is CBP doing to help fight this crisis?

ANSWER: According to provisional data from the Centers for Disease Control and Prevention,

in 2016, drug overdoses were the leading cause of accidental death in the U.S., with opioids

accounting for over 20,000 fatalities. Aligned with those increases, CBP has seen a sharp

increase in fentanyl seizures coming through our land ports of entry and through express

consignment and international mail facilities. In FY 2017, CBP’s Office of Field Operations

seized more than double the amount of fentanyl, a 153% increase, than seized in FY 2016.

Recognizing this trend and our critical role, in July 2017 I directed the development of a

comprehensive and integrated strategy to enhance CBP’s ability to target and interdict opioids

entering the United States. CBP will continue to arrest and interdict all persons and contraband

the entered into the U.S. illegally while conducting border security operation, as well as through

counter-network operations to target and interdict the organizations involved in the smuggling of

opioids at each node in the supply chain based on intelligence. I would also like to emphasize

that ensuring that our CBP Officers and Agents are properly equipped to conduct these

interdictions in a safe and efficient manner must remain a top priority. To that end, CBP is

working with partner agencies to identify personal protective measures and testing equipment to

ensure officer safety while intercepting and accurately identifying fentanyl in the field.

CBP is greatly focused on allocating internal resources to interdict fentanyl, in all forms, so as to

prevent them from entering the United States. CBP is the first federal law enforcement agency

in the United States to train canines to detect fentanyl. CBP currently has over 100 canines

trained to detect fentanyl and is planning to expand fentanyl training to existing teams that

operate in the border security environment as well as ensuring all new canine teams have the

ability to detect fentanyl.

CBP is constantly looking for new and innovative technology to presumptively identify fentanyl

in the field. The Field Triage Infrared Reachback program continues to be the most effective

means to presumptively identify new fentanyl analogues as it integrates virtual scientists with

frontline officers. Reachback scientists are able to interpret data and recognize threats even if the

spectra of these new threats do not exist in established libraries. Additionally, Gemini™

presumptive testing devices have been deployed which is currently the only device on the market

which is able to utilize Raman and Fourier Transform Infrared Spectrometer (FTIR) technology

for presumptive identification purposes. CBP has procured 82 additional presumptive testing

devices which will be deployed to field offices nationwide. However, deployment will be

heavily focused on the mail/express courier operations and Southwest border.

CBP has conducted many successful special enforcement operations. These enforcement

operations have bolstered the interdiction of narcotics on the Southwest Border, international

mail and express courier facilities. Operation Hybrid II was conducted in Tucson, Arizona from

September 10-23, 2017. Operation Hybrid I was conducted in Laredo, Texas in May

2017. Operation Hybrid bolsters CBP Field Offices with personnel, intelligence, and equipment

to interdict hard drugs and other contraband being smuggled by pedestrians, privately owned

vehicles, commercial busses, and the Secure Electronic Network for Travelers Rapid Inspection

(SENTRI) Lanes. During Operation Hybrid I and II, Laboratory and Scientific Services (LSS)

deployed a mobile laboratory to perform more rigorous testing for the presence of fentanyl in

loads that were interdicted.

CBP also conducted Operation Crush in the express courier facilities in Memphis, Tennessee;

Cincinnati, Ohio; and Louisville, Kentucky from August 23-September 15, 2017. CBP

collaborated with other components and external agencies by leveraging enforcement, targeting,

investigations, science, and intelligence to identify and disrupt individuals smuggling hard

narcotics in the express courier environment. CBP will expand Operation Crush to international

mail facilities beginning with the Chicago and New York Field Offices.

In addition to our internal operations, CBP will continue international engagement to reduce the

supply chain in source countries through operational efforts and diplomatic engagement,

specifically with China, Mexico, and Central and South America. To address serious gaps in

information associated with fentanyl in Mexico, CBP conducted a fentanyl workshop focusing

on the Southwest border and Mexico in September 2017 in Tucson, Arizona. CBP is working

with representatives of Australia, Canada, New Zealand, and the United Kingdom to exchange

lessons learned, smuggling trends and best practices related to fentanyl. Subject matter experts

from the participating countries are working together to conduct focus meetings discussing

information such as officer safety, testing/detection, and substance analysis/exchange of spectra.

Lastly I would note that CBP stands ready to assist Congress on legislative solutions to ensure

CBP and its federal partners are well equipped with the appropriate authorities, information

sharing, and resources to amplify our enforcement efforts and best address this emerging threat.

Question 137a: I was in Puerto Rico recently and took a helicopter into the remote areas to see

the conditions on the ground. Our fellow Americans are struggling to survive and desperately

need our help. We need to get supplies into the hardest hit, remote areas of the island. Please

describe CBP’s efforts to date in Puerto Rico.

ANSWER: In October I also visited CBP operations and personnel in Florida, the U.S. Virgin

Islands, and Puerto Rico. The magnitude of the damage caused by both Hurricanes Irma and

Maria is devastating. I was humbled by the response of the CBP personnel who live and work in

these affected areas, putting mission first and assisting residents / neighbors who were in

desperate need.

In support of Federal Emergency Management Agency (FEMA) and other federal, state, and

local partners, CBP has provided support to various Emergency Support Functions (ESFs)

including Transportation (ESF-1), Communications (ESF-2), Emergency Management (ESF-5),

Logistics support (ESF-7), Search and Rescue (ESF-9), Public Security and Safety/ Law

Enforcement (ESF-13)12, and External Affairs (ESF-15). CBP deployed 224 employees with

the Surge Capacity Force in support of FEMA’s hurricane responses to Harvey, Irma, and Maria

– specifically 150 CBP officers and agents were deployed to Puerto Rico to contribute to the

12 CBP deployed 75 law enforcement personnel (performing a wide variety of missions) in support of FEMA’s

Emergency Support Function 13 (ESF-13; Public Safety and Security). Teams provided direct federal assistance to

Puerto Rico police departments as well as force protection for Disaster Medical Assistance Teams (DMAT).

relief effort. CBP distributed over 121,154 ready-to-eat meals, 770,262 bottles of water and 536

generators. CBP deployed subject matter experts to support FEMA’s intergovernmental affairs

mission to engage with local political leaders, local government officials, and non-governmental

organizations across Puerto Rico’s 78 municipalities.

CBP air assets have been instrumental in logistical support of emergency response personnel and

equipment for the whole-of-government response. CBP’s Air and Marine Operations (AMO)

UH-60 Blackhawk helicopters have been instrumental in providing food, water, and supplies in

remote areas where vehicles or other modes of transportation was unable to access. In fact,

helicopters were the only way these lifesaving supplies were able to be distributed to places

needing urgent care items. Not only were areas being resupplied, AMO aircraft and crew played

a crucial role in rescue operations in and around Puerto Rico. AMO employees flew almost

2,000 hours, on nine (9) different categories of airframes, completing 287 separate missions.

CBP will continue to support the on-going relief efforts in and around Puerto Rico and provide

assistance to the Island for the foreseeable future.

Question 137b: What is CBP’s long-term plan for helping FEMA and DOD?

ANSWER: CBP ‘organically’ has assets in Puerto Rico including, but not limited to, San Juan

and Aguadilla. CBP intends to continue to carry out its mission and partner with FEMA and

Department of Defense (DOD) to assist as needed based on evolving (if not slowly improving)

conditions. For example, CBP maintains support to the FEMA National Response Coordination

Center (NRCC) and is continuing to monitor and support requests for aerial assets if or when

needed.

In support of FEMA (via DOJ’s Bureau of Alcohol, Tobacco, Firearms, and Explosives) CBP is

currently the last deployed federal law enforcement team to remain on the island and has assisted

various Puerto Rico entities including but not limited to Puerto Rico Police Department in an

effort to stabilize its local police force and facilitate a return to normal operations. This team will

demobilize when FEMA is able to determine the need for federal support is no longer required.

Local Puerto Rico CBP personnel have and will continue to engage with their local counterparts

and assess local recovery requirements. CBP through its Lead Field Coordinator (LFC) Diane

Sabatino (Director of Miami Field Operations) maintains daily communication with its Puerto

Rico based counterparts and similarly, remains in communication with its Headquarters

counterparts to respond to local recovery needs where CBP is able to provide support.

CBP as the largest federal law enforcement agency in the United States is equipped with assets

and special response teams. CBP has a close relationship with FEMA and we will remain

available to support disaster responses around the country.

Question 138a: Before the Enforce and Protect Act (EAPA) was signed into law, CBP’s system

for investigating duty evasion was opaque and cumbersome. EAPA creates an open process

which essentially gives CBP a year to finish investigations. It has been great to see some success

– CBP’s efforts on wire coat hangers, diamond sawblades, and oil country tubular goods comes

to mind. Thank you for your work on these investigations. However, at the same time, there is

still more that can be done under the EAPA framework.

Could you comment broadly on how EAPA has helped CBP address duty evasion?

ANSWER: The Enforce and Protect Act (EAPA) established a formal process for CBP to

investigate allegations of evasion of anti-dumping and countervailing duty orders (AD/CVD).

Specifically, it provides for a transparent administrative proceeding parties can both participate

in, and learn the outcome of, a relevant investigation. The transparent nature of these

investigations has had several benefits, such as encouraging importers to participate once they

see the public record being compiled in the investigation.

Further, under this newly established process, CBP created various web-based allegation

solutions. For example, EAPA-related allegations may be submitted to CBP via email and CBP

also created a website to post background information, new updates, and decisions made in the

EAPA investigations. This permits real time communication with the trade on important

developments in the EAPA program.

Additionally, by centralizing the EAPA investigations under the Office of Trade’s Trade

Remedy Law Enforcement Directorate (TRLED), CBP has been able to ensure that any concerns

occurring in the investigations are readily addressed, as well as to provide better communication

and coordination among the various units within CBP that are working these

investigations. TRLED, being at Headquarters is also better positioned to coordinate with other

government agencies, such as the U.S. Department of Commerce, as well as other foreign

governments to facilitate the exchange of information in these investigations.


THE HONORABLE Rob Portman







Question 138b: And mindful of the fact that you have stated CBP’s belief that these reforms

would take additional legislation, do you believe that the use of Administrative Protective Orders

(APOs) or permitting allegations of duty evasion to be filed even when the importer is unknown,

would be helpful at curtailing duty evasion?

ANSWER: The EAPA interim final regulations currently require the identification of the

importer in the allegation because a party might argue that CBP's identification of the importer's

name violates the Trade Secrets Act. Thus, a legislative change exempting this from the Trade

Secrets Act would permit CBP to reveal the identity of the importer who may be entering

merchandise as to evasion and avoid potential violation of the Trade Secrets Act. CBP has

developed a legislative proposal that is currently being vetted through the interagency clearance

process.

This would be extremely helpful in curtailing duty evasion. As more importers become aware of

the use of public data in these investigations, they will actively work to shield their identity and

hinder the ability of allegers to bring allegations. Closing this loophole means that the alleger

need only to identify the scheme and parties involved, but not necessarily the actual importer of

record in order for CBP to investigate the allegation and publicly bring the importer of record

into the investigation.

An APO provides the ability for parties' attorneys (not the parties themselves) to review and

comment upon business confidential information in the course of a proceeding. The benefit that

this may add is that the representatives for the importer and alleger may be able to more fully

comment upon the other’s submissions after having received the unredacted version.

Administering such a manually intensive process would take our limited resources away from

our investigations, it could potentially hinder our ability to conduct these investigations, rather

than facilitate them if such a requirement were added without the resources necessary to

administer an APO process. Additionally, we currently serve documents to parties via email as

those documents contain only public information. Service of documents with business

confidential information may require us to implement an electronic case management system,

which would require additional resources and time to establish. Furthermore, CBP currently

lacks necessary statutory authority to adopt an APO process.

Question 139: As you know one of the intended benefits of the Enforce and Protect Act was to

incorporate more stakeholder input to better target duty evasion. In the enacted Trade Facilitation

and Trade Enforcement Act, under the EAPA guidelines the agency committed to a establish

trade enforcement task force to address issues of concern to stakeholders.

Are you aware if this task force has been established?

ANSWER: In May 2016, CBP established a Trade Enforcement Task Force to address AD/CVD

evasion. Effective October 1, 2017, this function was incorporated into a permanent Enforcement

Operations Division within the Trade Remedy Law Enforcement Directorate, Office of Trade.

This new division is responsible for intake and investigation of all EAPA allegations. This

division also conducts regular outreach to the trade community to discuss best practices for

submitting an EAPA allegation and answer any questions.

Question 140a: On March 31, 2017 President Trump issued an executive order entitled

“Establishing Enhanced Collection and Enforcement of Antidumping and Countervailing

(AD/CV) Duties and Violations of Trade and Customs Laws.” The order directs the development

of a report in consultation with the Departments of Treasury and Commerce and the U.S. Trade

Representative.

What is the agency doing with regard to this Executive Order?

ANSWER: The plan called for in Executive Order 13785, entitled “Establishing Enhanced

Collection and Enforcement of Antidumping and Countervailing Duties and Violations of Trade

and Customs Laws,” was transmitted by DHS to the White House during the week of September

11, 2017. The report was developed in consultation with the Department of Treasury, the

Department of Commerce, the U.S Trade Representative, DOJ and ICE.

Question 140b: Has the report already been delivered to the President?

ANSWER: DHS has completed the report, entitled “Establishing Enhanced Collection and

Enforcement of Antidumping and Countervailing (AD/CV) Duties and Violations of Trade and

Customs Laws” and transmitted to the White House the week of September 11, 2017.

Question 141: Section 307 of the Tariff Act bans the import of any products made with forced

labor. In the last Congress, the Committee took further action to strengthen Section 307’s ban by

passing the Trade Facilitation and Trade Enforcement Act into law, which included language that

closed a loophole that had been allowing goods made by human trafficking victims to be

imported into the U.S. In doing so, Congress made clear that human trafficking is unacceptable,

and we should not be furthering this exploitation by accepting products produced with forced

labor.

However, in spite of Congress’s direction to support trafficking victims and protect American

workers by robust enforcement of Section 307, CBP only issued four Withhold Release Orders

(WROs) last year and none yet this year. Human Rights First estimated $142 billion worth of

products made by forced labor are coming into the country each year, and the current level of

engagement from CBP on this issue is simply insufficient.

Will you commit to prioritizing the enforcement of the Section 307 ban, including through

issuing WROs?

ANSWER: Yes, if confirmed, during my tenure CBP will prioritize the enforcement of Section

307 including the issuance of WROs. To that end, CBP is actively self-initiating forced labor

investigations to protect vulnerable populations and prevent goods produced with forced labor

from entering into our supply chains. We are developing information internally and

collaborating with interagency partners to self-initiate these important cases. We are currently

evaluating several potential circumstances where withhold release orders could be appropriate.

Question 142a: As you know, the cruise business is new to the Great Lakes, with Great Lakes

ports accepting cruise ship passengers for the first time in 2015. The Port of Cleveland first

accepted cruise ship passengers earlier this year. I am pleased that CBP has worked with the

Great Lakes ports on methods to process incoming passengers from cruise vessels during these

early stages, such as jump kits and temporary structures. Such methods were approved by CBP

as temporary alternatives with an understanding that permanent structures may need to be built in

the future as the cruise business grows. Therefore, the sudden decision made by CBP in April to

deny cruise ships into Great Lakes ports that lacked permanent facilities would have shut down

the cruise business in the Great Lakes. I appreciate CBP’s recognition that this decision was

sudden and unworkable, and was reversed. I understand that CBP is now working with the Great

Lakes ports on plans to accept cruise passengers in 2018.

Can you provide an update on the discussions on how passengers will be processed at Great

Lakes ports in the 2018 shipping season?

ANSWER: On October 18, I met with Michigan Governor Rick Snyder to talk through these

concerns and I know our Director of Field Operations will continue the dialogue locally. CBP

continues to work with cruise lines operating in the Great Lakes to design and implement

workable and viable solutions for the processing of passengers and crew. Due to the varying

infrastructure around the Great Lakes there most likely will be several solutions depending on

the passenger and crew processing environment. Current numbers reflect that a total of 25

cruises took place in FY 2017, a total of 3,313 passengers and 1,896 crew members were

processed. There were no adverse actions during the FY 2017 cruise season indicating a lower

risk traveler. CBP will continue to work with the appropriate stake holders during the winter

months to develop plans for the FY 2018 cruise season.

Question 142b: Has CBP made any long term decisions about the use of portable jump kit

technologies as a temporary method to accept passengers?

ANSWER: CBP continues to research new technology that enhances and enables CBP to

maintain security of the United States while facilitating lawful trade and travel. While portable

jump kits were the available technology and were utilized as a temporary solution, technology

and new pilot programs in the marine environment could provide other solutions to the

processing of passengers and crew. CBP cannot commit to the continued use of jump kits as we

are moving forward with innovative technology.

Question 142c: Moving forward, can you commit to working with the Great Lakes ports on a

long term and cost-effective solution that will aid in the growth of the cruise business in the

Great Lakes while acknowledging, as CBP has in the past, that temporary methods may be

necessary in the short term?

ANSWER: Yes, in addition to the discussions for the 2018 cruise season, I will commit to

exploring long term and cost-effective solutions, such as the Donation Acceptance Program

which may be effective in addressing the current lack of processing facilities which would enable

CBP to continue its services to the Great Lakes cruising industry.

Question 143: How will the CBP balance the needs of port and cargo security with growing

commerce in a supply chain that requires efficiency in and around our ports in order for goods to

move through the larger system?

ANSWER: CBP will continue to employ a layered risk-management approach--relying on

advanced electronic information, analytics, non-intrusive inspection technology, and trade

community and international partnerships--to address threats in the supply chain at the earliest

possible point and facilitate the flow of the lawful trade through ports of entry. CBP is

committed to providing a secure gateway for international trade, eliminating supply chain

barriers at the border, and developing transformation to enhance the movement of goods through

concerted partnership with experts in the trade community.

Question 144: Hiring veterans has been a useful tool to streamline the CBP hiring and

assignment process. How can CBP continue to promote and utilize veterans in the CBP

workforce to ensure the secure and efficient movement of goods within a complex supply chain?

ANSWER: A key element in CBP’s Hiring Strategy is a focus on recruiting transitioning

service-members, veterans, and disabled veterans for both frontline law enforcement and mission

support occupations. CBP uses direct hiring authorities for qualified veterans. In FY 2017,

veterans represented over a quarter (28.95 percent) of the total workforce and almost one-third

(31.64 percent) of new hires. Veterans with a compensable disability of 30 percent or more

represented 6.5 percent of the CBP workforce, and constituted a little over 10 percent of new

hires.

In close partnership with the Department of Defense, CBP attends national military conferences

and advertises in military publications and on military oriented websites to attract veterans. CBP

conducts recruitment and outreach activities at military installations and affiliated organizations


THE HONORABLE John Thune







to include establishing CBP Recruitment Offices at Ft. Campbell, KY; Ft. Drum, NY; Ft. Hood,

TX; and Ft. Bliss, TX to pilot a concept for attracting additional veterans. CBP fully intends to

expand these pilot locations in hopes of offering America’s service members more physical

access to CBP recruiters allowing them a great place to build a career. In addition to this concept

CBP currently conducts expedited hiring hubs monthly for veterans at military installations.

In FY 2017, CBP recruiters conducted 1,906 Special Emphasis Recruiting events, targeting

active duty service-members, veterans, and a multitude of diversity groups at military

installations, veterans’ groups, and Historically Black Colleges and Universities (HBCUs). CBP

uses the Veterans Recruitment Appointment (VRA), which has vastly streamlined the hiring

process for transitioning service-members, veterans, and veterans with disabilities who qualify

for our LEO positions.

CBP is also working to standardize recruiter training to incorporate specific benefits that CBP

offers to Veterans and transitioning service members. In FY 2018, this training will be provided

to approximately 1,000 CBP Recruiters. We believe this training will be significant in equipping

our Recruiters to more effectively articulate why Veterans should consider CBP as a post-service

career option. Additionally, in FY 2018 CBP will partner with the Department of Army Career

Skills Program (CSP), which is part of the military life cycle that prepares Soldiers for civilian

employment upon completion of their military service.

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